Amicus Curiae Brief — Karen Jimerson, et al., Petitioners v. Mike Lewis

No. 24-473

In the Supreme Court of the United States

__________

KAREN JIMERSON, et al.,

Petitioners,

v.

MIKE LEWIS,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

__________

Clark M. Neily III

Counsel of Record

Matthew P. Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

November 29, 2024

i

QUESTION PRESENTED

Does an officer violate clearly established law when

he searches the wrong house without ascertaining the

address or conspicuous features of the house to be

searched? See Maryland v. Garrison, 480 U.S. 79, 88

(1987).

ii

TABLE OF CONTENTS

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

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

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

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

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

ARGUMENT ................................................................ 2

I. ADDRESS CHECKS PROTECT

HUMAN LIFE................................................ 2

II. ADDRESS CHECKS PROTECT

HOMEOWNERS. ........................................... 6

III. ADDRESS CHECKS PROTECT

OFFICERS. .................................................... 9

IV. THIS COURT HAS REAFFIRMED

AND CLARIFIED THAT THE

FIFTH CIRCUIT SHOULD NOT

GRANT QUALIFIED IMMUNITY

SIMPLY BECAUSE THERE IS NO

PRIOR CASE INVOLVING THE

SAME FACTS. ............................................. 11

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ............. 11

Ashcroft v. al-Kidd, 563 U.S. 731 (2011)................... 11

Baxter v. Bracey, 140 S. Ct. 1862 (2020) ................... 13

District of Columbia v. Wesby, 583 U.S. 48

(2018) ...................................................................... 12

Groh v. Ramirez, 540 U.S. 551 (2004) ....................... 12

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............... 11

Hope v. Pelzer, 536 U.S. 730 (2002) .......................... 12

Hudson v. Michigan, 547 U.S. 586 (2006) .................. 3

Johnson v. United States, 333 U.S. 10 (1948)............. 3

Ker v. California, 374 U.S. 23 (1963) .............. 3, 5, 6, 9

Kisela v. Hughes, 584 U.S. 100 (2018) .......... 11, 12, 13

Lane v. Franks, 573 U.S. 228 (2014) ......................... 12

Launock v. Brown, 2 B. & Ald. 592, 106 Eng.

Rep. 482 (1819) ......................................................... 9

Maryland v. Garrison, 480 U.S. 79 (1987) .................. 2

McCoy v. Alamu, 950 F.3d 226 (5th Cir. 2020)......... 15

McCoy v. Alamu, No. 20-31, 2021 U.S. LEXIS

768 (Feb. 22, 2021) ................................................. 15

McDonald v. United States, 335 U.S. 451

(1948) ................................................................ 4, 5, 9

Payton v. New York, 445 U.S. 573 (1980) ............... 2, 3

Sause v. Bauer, 585 U.S. 957 (2018) ......................... 12

iv

Semayne’s Case, 5 Co. Rep. 91a, 77 Eng. Rep.

194 (K.B. 1603) ......................................................... 4

Taylor v. Riojas, 592 U.S. 7 (2020)...................... 13, 14

Taylor v. Stevens, 946 F.3d 211 (5th Cir.

2019) ....................................................................... 14

United States v. Lanier, 520 U.S. 259 (1997) ........... 11

White v. Pauly, 580 U.S. 73 (2017) ............................ 11

Wilson v. Arkansas, 514 U.S. 927 (1995) .................... 4

Wilson v. Layne, 526 U.S. 603 (1999) ........................ 12

Zadeh v. Robinson, 902 F.3d 483 (5th Cir.

2018) ....................................................................... 13

Ziglar v. Abbasi, 582 U.S. 120 (2017) ....................... 13

Other Authorities

Andrew Chung et al., Shielded, REUTERS

(May 8, 2020) .......................................................... 13

Ashley Fantz, Fatal Mistake, SALON

(Oct. 19, 2000) ................................................ 6, 7, 10

Jack Pointer, 2 Prince George’s Co. Officers

Shot after Warrant Served at Wrong Home:

Police Chief, WTOPNEWS

(Sept. 20, 2018, 11:59 PM) ..................................... 10

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 NOTRE DAME L.

REV. 1797 (2018) .................................................... 13

Joel Brown, “I Never Got an Apology’” Raleigh

Mom Still Devastated after RPD Tactical

Team Raids Wrong Home, ABC11

(Feb. 1, 2022) ............................................................ 7

v

Kalhan Rosenblatt, Mississippi Police Fatally

Shoot Man at Wrong House While Serving

Warrant, NBC NEWS

(July 26, 2017, 4:53 PM) .......................................... 6

Kevin Sack, Door-Busting Drug Raids Leave

a Trail of Blood, N.Y. TIMES (Mar. 18, 2017)

.................................................................... 7, 8, 9, 10

Mayra Moreno, Retired Officer, Family

Startled by Deputies Serving Arrest

Warrant at Wrong Home, 6 ABC ACTION

NEWS (Sept. 10, 2020) .............................................. 4

Minyvonne Burke, Black Woman Handcuffed

Naked in Raid at Wrong Home Set to Get

$2.9 Million from Chicago, NBC NEWS

(Dec. 14, 2021) .......................................................... 7

Nahal Amouzadeh, 2 Prince George’s Co.

Officers Shot While Executing Warrant,

WTOPNEWS (Sept. 20, 2018, 1:00 AM) ................. 10

Nick Sibilla, Cop Who Wrongly Led No-Knock

Raid Against 78-Year-Old Grandfather

Can’t Be Sued, Court Rules, FORBES

(June 8, 2021) ........................................................... 8

William Baude, Is Qualified Immunity

Unlawful?, 106 CALIF. L. REV. 45 (2018) ......... 12, 13

Constitutional Provisions

U.S. CONST. amend. IV ................................................ 2

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a non-partisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. The Cato Institute’s

Project on Criminal Justice was founded in 1999 and

focuses on the proper role of the criminal sanction in a

free society, the scope of substantive criminal liability,

the proper and effective role of police in their

communities, the protection of constitutional and

statutory safeguards for criminal suspects and

defendants, citizen participation in the criminal

justice system, and accountability for law enforcement

officers.

This case concerns amicus because it involves core

questions of individual liberty protected by the

Constitution and presents an opportunity to improve

the administration of the Fourth Amendment and

maintain that provision’s protections.

SUMMARY OF THE ARGUMENT

Petitioners Karen Jimerson and her family

challenge the Fifth Circuit’s holding that SWAT

officers were entitled to qualified immunity when they

proceeded to “break and rake” her home in a military1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

style no-knock raid—even though the address on the

house did not match the search warrant and the raided

house had a massive wheelchair ramp out front,

instead of the target house’s front porch and chain-link

fence. Ms. Jimerson’s petition reflects the Fourth

Amendment’s function in protecting human life. When

officers do not check addresses, they needlessly

endanger homeowners and law enforcement officers.

The petition also challenges yet another instance of

the Fifth Circuit disregarding this Court’s instruction

that a court should not grant qualified immunity

simply because there is no prior case involving the

same facts.

ARGUMENT

I.

ADDRESS

LIFE.

CHECKS

PROTECT

HUMAN

This Court has observed that officers are

constitutionally “required” not to enter a residence

when they are “put on notice of the risk” that they

“might” lack warrant authorization to search it.

Maryland v. Garrison, 480 U.S. 79, 87 (1987). Officers

must undertake “a reasonable effort to ascertain and

identify the place intended to be searched.” Id. at 88.

The Garrison rule protects human life. The

constitutional guarantee of security in one’s house was

inspired by overbroad “general warrants” issued by

British colonial authorities.2 Nothing is nearer to the

2 U.S. CONST. amend. IV; Payton v. New York, 445 U.S. 573, 583

(1980).

3

Fourth Amendment’s essence than preventing “the

danger of needless intrusions.”3

Needless

intrusions

threaten

multiple

constitutional interests. First, they imperil the privacy

of the home.4 After all, police officers searching a home

may encounter people undressed or in bed, Hudson v.

Michigan, 547 U.S. 586, 594 (2006)—indeed, during

the search of Ms. Jimerson’s home, officers

encountered her emerging from the shower half-naked

and the father of her children awaking from sleep.5

Needless intrusions also put property at risk. Long

before American Independence, judges foresaw that

entries could entail “destruction or breaking”—as did

Payton, 445 U.S. at 585–86; cf. id. at 588–89 (noting “the

sanctity of the home” as an important Fourth Amendment value).

3

4 See id. at 589 (“In [no setting] is the zone of privacy more clearly

defined than when bounded by the unambiguous physical

dimensions of an individual’s home . . . .”); Hudson v. Michigan,

547 U.S. 586, 594 (2006) (“[E]lements of privacy and dignity . . .

can be destroyed by a sudden entrance . . . .”); Ker v. California,

374 U.S. 23, 57 (1963) (Brennan, J., concurring in part and

dissenting in part, joined by three other justices) (noting the

“shock, fright or embarrassment attendant upon an unannounced

police intrusion”); Johnson v. United States, 333 U.S. 10, 14

(1948) (saying entries threaten “a society which chooses to dwell

in reasonable security and freedom from surveillance.”).

5 See Cert. Pet. App’x at 5a–6a, 63a–64a.

4

the “break and rake” operation here.6 Ms. Jimerson’s

home was damaged when officers smashed in her

windows, exploded a flashbang grenade, and kicked

down her door.7 Several of Ms. Jimerson’s children had

broken glass enter their eyes.8 This is not the first time

in recent memory that Texas officers executing a

warrant have busted down the door of the wrong

house—as recently as 2020, they did so at the home of

a retired officer, who called their actions

“unprofessional and intimidating.”9

Needless intrusions put privacy and property at

risk. Even more importantly, they can lead to the

needless loss of human life. Fortunately, no one was

killed at Ms. Jimerson’s house. To quote Justice Robert

Jackson, this was a matter of “luck more than [of]

foresight.”10 He wrote those words in a concurrence to

McDonald v. United States, where a police officer

illegally jimmied open a woman’s bedroom window and

Wilson v. Arkansas, 514 U.S. 927, 935–36 (1995) (quoting

Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K.B.

1603)).

6

7 See Cert. Pet. App’x at 5a–6a, 63a–64a.

8 See id. at 64a.

Mayra Moreno, Retired Officer, Family Startled by Deputies

Serving Arrest Warrant at Wrong Home, 6 ABC ACTION NEWS

(Sept. 10, 2020), https://6abc.com/harris-county-deputies-servewarrant-at-wrong-house-retired-police-officer-home-case-underinvestigation-louis-rodriguez/6416554/.

9

10 McDonald v. United States, 335 U.S. 451, 460 (1948) (Jackson,

J., concurring).

5

crawled inside to investigate a lottery scheme operated

from her boarding house.11 Justice Jackson foresaw

“grave troubles” arising from needless home entries.12

Innocent armed homeowners, having no reason to

expect a police raid, could well think officers were

criminal intruders. In such cases, their “natural

impulse would be to shoot.”13 Or an officer “seeing a

gun being drawn on him might shoot first”—though

Justice Jackson thought the officer’s lethal response

could well be deemed murder.14

Justice Jackson hoped constitutional warrant

requirements for home entries would curb operations

that were “reckless” and “fraught with danger and

discredit.”15 But warrants amount to nothing if police

need not check addresses before entering homes.

Later justices have also expressed concern about

the dangers of needless home entries, warning that

“practical hazards of law enforcement militate

strongly against any relaxation” of constitutional

rules.16 The possibility that police are mistaken as to

residential addresses is “a good reason for holding a

11 See id. at 452–56 (majority opinion).

12 See id. at 459 (Jackson, J., concurring).

13 Id. at 460–61.

14 Id. at 461.

15 Id.

Ker, 374 U.S. at 57 (Brennan, J., concurring in part and

dissenting in part).

16

6

tight rein against judicial approval of unannounced

police entries into private homes.”17

II. ADDRESS

CHECKS

HOMEOWNERS.

PROTECT

Homeowners have died because officers did not

check addresses. Police shot and killed 41-year-old

father Ismael Lopez after seeing him holding a gun,

only to realize that their actual target lived next door.

They had failed to check the externally displayed

street numbers or take note of the massive letter “P”

on their target Samuel Pearlman’s wall.18

Recent retiree John Adams of Lebanon, Tennessee

was watching television, his cane resting against his

recliner, before seven officers burst into his home.19

They manhandled his wife, then shot John repeatedly

and killed him.20 Lebanon police chief Bill Weeks

admitted that the incident was “absolutely the

17 Id.

18 See Kalhan Rosenblatt, Mississippi Police Fatally Shoot Man

at Wrong House While Serving Warrant, NBC NEWS (July 26,

2017,

4:53

PM),

https://www.nbcnews.com/news/usnews/mississippi-police-fatally-shoot-man-wrong-house-whileserving-warrant-n786681.

Ashley Fantz, Fatal Mistake, SALON (Oct. 19, 2000),

https://www.salon.com/2000/10/19/shooting_3/.

19

20 Id.

7

stupidest move I’ve ever seen in law enforcement”—

his officers had gone to the wrong house.21

Officers raiding the wrong residence killed “a 7year-old girl in Detroit.”22

Officers shot Iyanna Davis of Hempstead, New

York when they went to serve a warrant for the other

unit in her two-family residence.23

Non-fatal intrusions have happened as well.

Officers detained Raleigh school bus driver Yolanda

Irving at gunpoint—she lived two doors over from the

house their warrant targeted.24 The City of Chicago

paid nearly $3 million to social worker Anjanette

Young after she was handcuffed while naked—

similarly to how Ms. Jimerson here was forced to lie on

the ground for fifteen minutes with nothing covering

her lower half, Cert. Pet. App’x at 63a—by officers who

were supposed to search her neighbor’s home.25

21 Id.

22 Kevin Sack, Door-Busting Drug Raids Leave a Trail of Blood,

N.Y. TIMES (Mar. 18, 2017), https://www.nytimes.com/

interactive/2017/03/18/us/forced-entry-warrant-drug-raid.html

[hereinafter “Door-Busting Raids”].

23 See id.

24 See, e.g., Joel Brown, ‘I Never Got an Apology’: Raleigh Mom

Still Devastated after RPD Tactical Team Raids Wrong Home,

ABC11 (Feb. 1, 2022), https://abc11.com/raleigh-police-raidwrong-house-drug-botched-poilice-family-terrified/11531039/.

25 Minyvonne Burke, Black Woman Handcuffed Naked in Raid at

Wrong Home Set to Get $2.9 Million from Chicago, NBC NEWS

(Dec. 14, 2021), https://www.nbcnews.com/news/us-news/black-

8

Officers raided the Georgia home of Onree Davis, a 78year-old man, when they had a warrant for his

neighbor’s house, even though a captain “later testified

he ‘wasn’t sure’ [Mr. Davis’s] house was actually their

target and just assumed his subordinates ‘acquired

information’” to that effect.26

Errors in executing drug search warrants

inherently endanger human life. Between 2010 and

2014, over 90 percent of Maryland SWAT deployments

were to serve search warrants, and two-thirds of these

involved forcible entries.27 “Firearms were discharged

in 99 operations, civilians were killed in nine and

injured in 95 . . . and animals were killed in 14.”28

Between January 2011 and March 2013, the Little

Rock, Arkansas SWAT team “broke down doors and

detonated flash-bangs in more than 90 percent of 147

narcotics search warrant raids.”29 A nationwide survey

of cases from the early and mid-2010s found that at

least “47 civilians and five officers died as a result of

the execution of knock-and-announce searches, while

woman-handcuffed-naked-raid-wrong-home-set-get-29-millionchicag-rcna8701.

26 Nick Sibilla, Cop Who Wrongly Led No-Knock Raid Against 78-

Year-Old Grandfather Can’t Be Sued, Court Rules, FORBES (June

8,

2021),

https://www.forbes.com/sites/nicksibilla/2021/06/

08/cop-who-led-accidental-no-knock-raid-against-78-year-oldgrandfather-cant-be-sued-court-rules/.

27 See Door-Busting Raids, supra.

28 Id.

29 Id.

9

31 civilians and eight officers died in the execution of

no-knock warrants.”30

Dangerous raids are concentrated in low-income

and minority neighborhoods. Nearly half of SWAT

search-warrant home entries target Black subjects.31

Non-whites account for nearly half of civilians killed in

police home entries.32 The ruling below imperils

homeowners’ lives—and does so in disparate ways.

III. ADDRESS CHECKS PROTECT OFFICERS.

Home entries put officers in harm’s way, too. Recall

that Justice Jackson thought a homeowner might kill

a police officer thinking she was acting in selfdefense.33 The knock-and-announce rule is meant “to

protect the arresting officers from being shot as

trespassers.”34 But no-knock warrants—like the one

here—leave officers without whatever protection

warnings might provide, if homeowners even hear

them.

This leads to harm. Records show that “officers

were injured in at least 30” Maryland SWAT raids

30 Id.

31 See id.

32 See id.

33 McDonald, 335 U.S. at 461 (Jackson, J., concurring); see also

Ker, 374 U.S. at 58 (op. of Brennan, J.) (citing Launock v. Brown,

2 B. & Ald. 592, 594, 106 Eng. Rep. 482, 483 (1819)).

34 Ker, 374 U.S. at 58 (op. of Brennan, J.).

10

between 2010 and 2014.35 Officers also said that before

they killed John Adams, the Tennessee man discussed

above, he fired a shotgun at them.36

Consider as well a 2018 search-warrant execution

from Prince George’s County, Maryland. Unlike the

officers in Ms. Jimerson’s case, the Prince George’s

officers did knock and shout a warning, but the

sleeping homeowner did not hear them. After they

entered, the man fired a shotgun, worried for his

daughter’ safety. Once he realized he had shot two

officers—wounding one of them severely—he

surrendered, “devastated” by what had happened. The

officers’ warrant had been based on bad information,

and their chief imposed a moratorium on serving

warrants until he was sure each had been properly

vetted.37 Like Ms. Jimerson, he wanted to be sure his

officers were safe from needless home entries.

35 Door-Busting Raids, supra.

36 Fantz, supra.

See Jack Pointer, 2 Prince George’s Co. Officers Shot after

Warrant Served at Wrong Home: Police Chief, WTOPNEWS (Sept.

20,

2018,

11:59

PM),

https://wtop.com/prince-georgescounty/2018/09/prince-georges-chief-on-shooting-warrant-wasserved-at-wrong-address/; Nahal Amouzadeh, 2 Prince George’s

Co. Officers Shot While Executing Warrant, WTOPNEWS (Sept.

20,

2018,

1:00

AM),

https://wtop.com/prince-georgescounty/2018/09/2-prince-georges-co-officers-shot-in-districtheights/.

37

11

IV. THIS COURT HAS REAFFIRMED AND

CLARIFIED THAT THE FIFTH CIRCUIT

SHOULD

NOT

GRANT

QUALIFIED

IMMUNITY SIMPLY BECAUSE THERE IS

NO PRIOR CASE INVOLVING THE SAME

FACTS.

Under the doctrine of qualified immunity, public

officials can be held liable under Section 1983 only if

they “violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). However, this Court has not always

spoken with clarity on how lower courts should decide

whether a right was “clearly established.” It has

instructed lower courts “not to define clearly

established law at a high level of generality,” Ashcroft

v. al-Kidd, 563 U.S. 731, 742 (2011), and stated that

“clearly established law must be ‘particularized’ to the

facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017)

(quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). But the Court has also emphasized that its

case law “does not require a case directly on point for

a right to be clearly established,” Kisela v. Hughes, 584

U.S. 100, 104 (2018) (quoting White, 580 U.S. at 79),

and that “‘general statements of the law are not

inherently incapable of giving fair and clear warning.’”

White, 580 U.S. at 79 (quoting United States v. Lanier,

520 U.S. 259, 271 (1997)). While “earlier cases

involving ‘fundamentally similar’ facts can provide

especially strong support for a conclusion that the law

12

is clearly established, they are not necessary to such a

finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Despite these conflicting statements of principle,

for decades the Court did send a clear message to

lower courts through the outcomes in actual qualified

immunity cases. From 1982 through the 2018–19

term, the Court issued 32 substantive qualified

immunity decisions,38 and only twice did it find that

defendants’ conduct violated clearly established law.39

Moreover, in all but two of the 27 cases explicitly

granting immunity, the Court reversed the lower

court’s denial of immunity below.40 The takeaway was

clear: lower courts should ratchet up the difficulty of

demonstrating “clearly established law.”

Lower courts received this message. A Reuters

investigation examined hundreds of circuit court

opinions from 2005 to 2019 on appeals of cases in

which police officers accused of excessive force raised

a qualified immunity defense. The report revealed that

the rate of qualified immunity grants has been

steadily rising over time—in the 2005–07 period,

See William Baude, Is Qualified Immunity Unlawful?, 106

CALIF. L. REV. 45, 82, 88–90 (2018) (identifying all qualified

immunity decisions between 1982 and the end of 2017); see also

Sause v. Bauer, 585 U.S. 957 (2018); Kisela, 584 U.S. at 100;

District of Columbia v. Wesby, 583 U.S. 48 (2018).

38

39 See Groh v. Ramirez, 540 U.S. 551 (2004); Hope, 536 U.S. at

730.

40 Lane v. Franks, 573 U.S. 228 (2014), and Wilson v. Layne, 526

U.S. 603 (1999), were the two cases affirming grants of immunity.

13

courts granted immunity in only 44% of cases, but in

the 2017–19 period, courts granted immunity in 57%

of cases.41

But in 2020, this Court began to change course. In

light of recent scholarship undermining the purported

legal rationales for qualified immunity42 and explicit

calls to reevaluate the doctrine from justices43 and

other judges,44 the Court has faced the question of

whether the doctrine of qualified immunity should be

reconsidered.45 And while it has yet to grant a petition

on this fundamental, underlying issue, the Court did

issue an opinion in Taylor v. Riojas, 592 U.S. 7 (2020),

Andrew Chung et al., Shielded, REUTERS (May 8, 2020),

https://www.reuters.com/investigates/special-report/usa-policeimmunity-scotus/.

41

See Baude, supra; Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 NOTRE DAME L. REV. 1797 (2018).

42

See Kisela, 584 U.S. at 121 (Sotomayor, J., dissenting)

(qualified immunity has become “an absolute shield for law

enforcement officers” that has “gutt[ed] the deterrent effect of the

Fourth Amendment”); Ziglar v. Abbasi, 582 U.S. 120, 160 (2017)

(Thomas, J., concurring in part and concurring in the judgment)

(“In an appropriate case, we should reconsider our qualified

immunity jurisprudence.”).

43

See Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018)

(Willett, J., concurring) (“I add my voice to a growing, crossideological chorus of jurists urging recalibration of contemporary

immunity jurisprudence . . . .”).

44

See, e.g., Baxter v. Bracey, 140 S. Ct. 1862, 1865 (2020)

(Thomas, J., dissenting from the denial of certiorari) (“I continue

to have strong doubts about our §1983 qualified immunity

doctrine. Given the importance of this question, I would grant the

petition.”).

45

14

which provides crucial clarity as to how lower courts

should apply the doctrine.

In Taylor, the Fifth Circuit granted qualified

immunity to corrections officers who held an inmate in

inhumane conditions—in one cell that was covered

floor-to-ceiling in human feces, and in another kept at

freezing temperatures with sewage coming out of a

drain in the floor—for six days. See Taylor v. Stevens,

946 F.3d 211, 222 (5th Cir. 2019). The panel reasoned

that, “[t]hough the law was clear that prisoners

couldn’t be housed in cells teeming with human waste

for months on end,” the law “wasn’t clearly

established” enough for the inmate to receive relief

because he “stayed in his extremely dirty cell for only

six days.” Id.

But this Court summarily reversed. In its per

curiam opinion, the Court explained that even though

no prior case had addressed the exact circumstances

at issue, “no reasonable correctional officer could have

concluded that, under the extreme circumstances of

this case, it was constitutionally permissible to house

Taylor in such deplorably unsanitary conditions for

such an extended period of time.” Riojas, 592 U.S. at

8–9. The Court also reaffirmed the basic principle that

“‘a general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question.’” Id. at 9 (quoting Lanier,

520 U.S. at 271).

Despite its brevity, and notwithstanding that the

opinion did not formally alter black-letter law, the

15

Taylor decision marks a clear change in the trajectory

of qualified-immunity jurisprudence. Indeed, this

Court soon thereafter vacated and remanded another

Fifth Circuit decision granting qualified immunity “for

reconsideration in light of Taylor v. Riojas.” McCoy v.

Alamu, No. 20-31, 2021 U.S. LEXIS 768 (Feb. 22,

2021). In McCoy, a prison guard had allegedly

assaulted an inmate with pepper spray because he had

“grown frustrated” with another inmate and

“arbitrarily took out his anger on McCoy by spraying

him ‘for no reason at all.’” McCoy v. Alamu, 950 F.3d

226, 231 (5th Cir. 2020). But the Fifth Circuit affirmed

immunity because no prior case had specifically held

that “an isolated, single use of pepper spray” was more

than a de minimis use of force. Id. at 233.

The Fifth Circuit’s error in McCoy was the same

sort of error as in Taylor, and the same sort of error it

committed yet again below: requiring a prior case with

nearly identical facts before denying immunity, even

though application of clearly established law to the

particular conduct at issue would have been obvious to

any reasonable person in the defendant’s position.

By vacating the McCoy order and remanding for

reconsideration in light of Taylor, this Court signaled

that courts should stop granting immunity simply

because there is no prior case with identical facts and

ask instead whether the unlawfulness of the relevant

conduct would have been obvious to a reasonable

defendant. Reversal of the remand with instructions to

16

dismiss below is necessary in this case to ensure that

the Fifth Circuit ceases to make this same mistake.

CONCLUSION

Officers decide when to execute search warrants.

They have time to check addresses before entering

homes. When they do not, homeowners and officers are

endangered.

This Court should grant Ms. Jimerson’s petition,

reverse the judgment below, hold the Respondent

accountable for deciding to “break and rake” without

checking the address, and protect human life by

upholding the Garrison rule.

........................................... Respectfully submitted,

November 29, 2024

Clark M. Neily III

Counsel of Record

Matthew Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org