Amicus Curiae Brief — Antonio M. Smith, Petitioner v. John Kind, et al.

No. 25-943

IN THE

Supreme Court of the United States

___________

ANTONIO M. SMITH,

v.

Petitioner,

JOHN KIND, ET AL.,

___________

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

___________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MICHELLE D. BERGER

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 11, 2026

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

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

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

1

ARGUMENT .........................................................

5

I.

Modern Qualified Immunity Is at

Odds with the Text and History of

Section 1983 .............................................

5

Modern Qualified Immunity Is a

Judicial Creation Based Expressly on

Policy Considerations .............................

8

III. This Court Should, at a Minimum,

Reaffirm the Limits on Qualified

Immunity that the Decision Below and

Others Like It Have Disregarded .........

13

CONCLUSION .....................................................

16

II.

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Creighton,

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

13

Ashcroft v. al-Kidd,

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

15

Astoria Fed. Sav. & Loan Ass’n v.

Solimino,

501 U.S. 104 (1991) ...............................

5

Baker v. McCollan,

443 U.S. 137 (1979) ...............................

11

Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ...............................

12

Bradley v. Fisher,

80 U.S. 335 (1871) .................................

9

Briscoe v. LaHue,

460 U.S. 325 (1983) ...............................

6

Bromage v. Prosser,

4 B. & C. 247 (1825) ..............................

7

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ...............................

3, 8

Burns v. Reed,

500 U.S. 478 (1991) ...............................

13

Butz v. Economou,

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

11, 12

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) ...............................

11

Cope v. Cogdill,

3 F.4th 198 (5th Cir. 2021) ...................

16

Crawford-El v. Britton,

523 U.S. 574 (1998) ............................

8, 11, 13

Dinsman v. Wilkes,

53 U.S. 390 (1851) ..............................

6, 7

Dixon v. Godinez,

114 F.3d 640 (7th Cir. 1997) .................

15

Dynes v. Hoover,

61 U.S. 65 (1857) ................................

6

Ely v. Thompson,

10 Ky. 70 (1820) ....................................

7

Frasier v. Evans,

992 F.3d 1003 (10th Cir. 2021) .............

16

Harlow v. Fitzgerald,

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

12, 13

Hernandez v. Mesa,

589 U.S. 93 (2020) .................................

4, 14

Hope v. Pelzer,

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

2, 15

Jimerson v. Lewis,

94 F.4th 423 (5th Cir. 2024) .................

15

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Kendall v. Stokes,

44 U.S. 87 (1845) ...................................

7

Little v. Barreme,

6 U.S. 170 (1804) ...................................

6

Malley v. Briggs,

475 U.S. 335 (1986) ...............................

9

Martinez v. High,

91 F.4th 1022 (9th Cir. 2024) ...............

15

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...............................

3

McNeese v. Bd. of Educ.,

373 U.S. 668 (1963) ...............................

11

Mitchum v. Foster,

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

3

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ...............................

5

Mullenix v. Luna,

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

2

Murray v. The Schooner Charming

Betsy,

6 U.S. 64 (1804) .....................................

6

Otis v. Watkins,

13 U.S. 339 (1815) .................................

7

Pierson v. Ray,

386 U.S. 547 (1967) ............................

9

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Rico v. Ducart,

980 F.3d 1292 (9th Cir. 2020) ............

15

Ross v. Blake,

578 U.S. 632 (2016) ...............................

5

Sands v. Knox,

7 U.S. 499 (1806) ...................................

6

Shanley v. Wells,

71 Ill. 78 (1873) .....................................

7

South v. Maryland,

59 U.S. 396 (1855) .................................

7

Sumner v. Beeler,

50 Ind. 341 (1875) .................................

7

Taylor v. Riojas,

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

4, 14, 15

Tenney v. Brandhove,

341 U.S. 367 (1951) ...............................

5, 8

Tower v. Glover,

467 U.S. 914 (1984) ...............................

9

Tracy v. Swartwout,

35 U.S. 80 (1836) ...................................

6

Wilkes v. Dinsman,

48 U.S. 89 (1849) ...................................

6, 7

Wilson v. Seiter,

501 U.S. 294 (1991) ...............................

14

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Wise v. Withers,

7 U.S. 331 (1806) ...................................

Wyatt v. Cole,

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

Yates v. Lansing,

5 Johns. 282 (N.Y. 1810) .......................

6

10-13

8

Statutes and Legislative Materials

An Act to Enforce the Provisions of the

Fourteenth Amendment to the

Constitution of the United States, and

for Other Purposes, ch. 22, 17 Stat. 13

(1871) ..................................................

5, 16

Cong. Globe, 39th Cong., 1st Sess.

(1866) .....................................................

3

Cong. Globe, 39th Cong., 2d Sess.

(1867) .....................................................

4

Cong. Globe, 42d Cong., 1st Sess.

(1871) ..................................................

11

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

5

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

David Achtenberg, Immunity Under 42

U.S.C. § 1983: Interpretive Approach and

the Search for the Legislative Will,

86 Nw. U. L. Rev. 497 (1992) .....................

11

William Baude, Is Quasi-Judicial

Immunity Qualified Immunity?,

74 Stan. L. Rev. Online 115 (2022) ...........

7

Joel Prentiss Bishop, Commentaries on the

Non-Contract Law (1889) ..........................

7

Thomas M. Cooley, A Treatise on the Law

of Torts (1879) ............................................

6

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) ...................

7

James E. Pfander, Zones of Discretion at

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

Colloquy 148 (2021)....................................

7

Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Cal. L.

Rev. 201 (2023) ......................................

6

Ilan Wurman, Qualified Immunity and

Statutory Interpretation,

37 Seattle U. L. Rev. 939 (2014) ................

11

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Donald H. Zeigler, A Reassessment of the

Younger Doctrine in Light of the

Legislative History of Reconstruction,

1983 Duke L.J. 987 (1983) .........................

4

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring meaningful access to the courts,

in accordance with constitutional text and history, and

therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

On a late-November day in Wisconsin, correctional

officers put Petitioner Antonio Smith in a frigid cell

with no clothes, bedding, or mattress. The temperature outside dropped to as low as 25 degrees Fahrenheit. Perceiving that a vent was blowing outside air

into his cell, Mr. Smith informed a correctional officer

that the cell was extremely cold and asked to move to

a warmer cell. He also asked for clothing, bedding, and

a mattress. Instead, correctional officers left him

there, naked, for 23 hours.

Plainly, a jury could find that Respondents denied

Mr. Smith the protection from extreme cold that is a

basic human need and that they did so with deliberate

indifference. The court below was unanimous on this

important point. Pet. App. 19a-21a, 25a. But if the

decision below stands, Mr. Smith will not have his day

1 Counsel for all parties received notice at least 10 days prior to

the due date of amicus’s intention to file this brief. No counsel for

a party authored this brief in whole or in part, and no counsel,

party, or person other than amicus or its counsel made a monetary contribution intended to fund its preparation or submission.

2

in court. Despite recognizing that Mr. Smith was exposed to “extreme cold,” id. at 21a, and that the Seventh Circuit has previously determined in “a number

of cases . . . that cold cell conditions violate[] an inmate’s Eighth Amendment rights,” id. at 21a-22a, the

majority below concluded that Respondents cannot be

held accountable for their violations of Mr. Smith’s

constitutional rights.

This Court should review that decision or simply

reverse it summarily. Qualified immunity shields officers from civil litigation only when “their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person would

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

(quotation marks omitted). But here Respondents’

conduct did violate a clearly established right. As the

dissent below recognized, the majority concluded otherwise only by succumbing to “a rigid[] overreliance on

factual similarity” in reviewing prior case law involving extreme cold. Pet. App. 25a (quoting Hope v.

Pelzer, 536 U.S. 730, 742 (2002)). The majority’s approach contravenes this Court’s commands. When an

officer’s actions are obviously unconstitutional, even

“novel . . . conduct violates established law.” Hope, 536

U.S. at 741.

The court below is not alone in failing to heed this

Court’s instruction. To the contrary, federal courts of

appeals frequently apply qualified immunity in a manner that creates a nearly impenetrable barrier to liability for officials sued under 42 U.S.C. § 1983. As this

case illustrates, courts too often refuse to acknowledge

constitutional rights as clearly established unless

prior cases involved identical facts. But even without

identical precedent, it should be obvious to any reasonable officer that it violates the Constitution to confine

3

someone naked in cell that is “colder than a refrigerator.” Pet. App. 27a.

These barriers to accountability do violence to Congress’s design. Qualified immunity can be justified, if

at all, only as an interpretation of Section 1983. Yet

the modern doctrine, especially as applied in the lower

courts, is not a credible interpretation of that statute.

Even assuming that Section 1983 was meant to incorporate “[c]ertain immunities” that were “well established” when it was enacted, Buckley v. Fitzsimmons,

509 U.S. 259, 268 (1993) (quotation marks omitted),

the broad exemption from suit reflected in the decision

below has no grounding in those common law immunities, nor in any indicia of congressional intent.

After the Civil War, when Southern states refused

to respect the constitutional rights of all citizens, a

new generation of Framers crafted the Fourteenth

Amendment to “restrain the power of the States and

compel them . . . to respect [the] great fundamental

guarantees” in the Bill of Rights. McDonald v. Chicago, 561 U.S. 742, 832 (2010) (Thomas, J., concurring

in part and concurring in the judgment) (quoting Cong.

Globe, 39th Cong., 1st Sess. 2766 (1866)). Section

1983, originally part of the Civil Rights Act of 1871,

reflects Congress’s commitment to the promise of those

rights, including rights under the Eighth Amendment.

When it became clear that Southern governments

were continuing to let abuses of formerly enslaved people and their allies go unchecked, and perpetuating

such abuses themselves, Congress passed Section 1983

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).

The Reconstruction Congress was acutely aware

that callous indifference to inmates’ human needs was

among the abuses they needed to address to combat

4

“the maladministration of justice in the South,” including by “sheriffs” and “jailors.” Donald H. Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 Duke L.J. 987,

1009 n.151 (1983). For example, one representative

during this period highlighted the “barbarity” of a

South Carolina jailer who refused to open the doors to

a jail that was on fire, resulting in the deaths of

twenty-two Black citizens. Cong. Globe, 39th Cong.,

2d Sess. 560 (1867) (Rep. Donnelly).

Qualified immunity, however, now gives state officials a broad shield against liability for violating constitutional rights. This judicial creation guts the remedial and deterrent purposes of Section 1983, even

though Congress is the branch “best positioned to evaluate whether, and the extent to which, monetary and

other liabilities should be imposed upon individual officers.” Hernandez v. Mesa, 589 U.S. 93, 101 (2020)

(quotation marks omitted).

Because qualified immunity doctrine has strayed

so far from statutory text and constitutional principles, virtually any corrective action by this Court

would mark an improvement. At a minimum, this petition presents an important opportunity for the Court

to provide additional guidance to the lower courts

through summary reversal. If this Court is not willing

to revisit qualified immunity wholesale—a step that is

overdue—it can still send an important message to the

lower courts by reaffirming an essential point: some

conduct is so obviously unlawful that a prior case with

precisely the same facts is not necessary to put officers

on notice and defeat claims of qualified immunity. See

Taylor v. Riojas, 592 U.S. 7, 9 (2020). Reaffirming this

point is critical to ensuring that qualified immunity—

an atextual, ahistorical judicial construction—does not

entirely extinguish the robust civil remedy that

5

Congress intended to provide to victims of unconstitutional conduct.

ARGUMENT

I. Modern Qualified Immunity Is at Odds with

the Text and History of Section 1983.

The remedial statute known today as Section 1983

sweeps broadly: “any person” who, under color of state

law, deprives another of their federal constitutional

rights “shall . . . be liable.” An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes,

ch. 22, § 1, 17 Stat. 13, 13 (1871).

“Statutory interpretation, as we always say, begins

with the text.” Ross v. Blake, 578 U.S. 632, 638 (2016).

Section 1983 “on its face admits of no defense of official

immunity,” but rather “subjects to liability ‘[e]very

person’ who, acting under color of state law, commits

the prohibited acts.” Buckley, 509 U.S. at 268 (quoting

42 U.S.C. § 1983).

To be sure, Congress is sometimes “understood to

legislate against a background of common-law adjudicatory principles.” Mohamad v. Palestinian Auth., 566

U.S. 449, 457 (2012) (quoting Astoria Fed. Sav. & Loan

Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). So “where

a common-law principle is well established, . . . the

courts may take it as given that Congress has legislated with an expectation that the principle will apply.” Astoria, 501 U.S. at 108; see Tenney v. Brandhove, 341 U.S. 367 (1951) (applying this presumption

to find absolute immunity for legislators under Section

1983). This presumption does not apply, however,

when “a statutory purpose to the contrary is evident.”

Astoria, 501 U.S. at 108 (quotation marks omitted).

Section 1983’s sweeping text and remedial purpose

call into question the notion that it displays “no

6

evidence” of an intent to abrogate common law immunities. Briscoe v. LaHue, 460 U.S. 325, 337 (1983); cf.

Alexander A. Reinert, Qualified Immunity’s Flawed

Foundation, 111 Cal. L. Rev. 201, 234-37 (2023) (highlighting terms from the 1871 legislation this Court has

never grappled with, namely, that officials are liable

for constitutional violations “notwithstanding” laws,

customs, or usages “of the State to the contrary”).

Even setting aside the textual problem, history

poses another. In English common law and early

American cases, government actors were strictly liable

for legal violations that deprived people of their rights.

See, e.g., Little v. Barreme, 6 U.S. 170, 178-79 (1804);

Murray v. The Schooner Charming Betsy, 6 U.S. 64,

122-26 (1804); Sands v. Knox, 7 U.S. 499, 503 (1806);

Wise v. Withers, 7 U.S. 331, 335-37 (1806); Tracy v.

Swartwout, 35 U.S. 80, 95 (1836); Dynes v. Hoover, 61

U.S. 65, 80-81 (1857). As this Court said: “It would be

a most dangerous principle to establish, that the acts

of a ministerial officer . . . injurious to private rights,

and unsupported by law, should afford no ground for

legal redress.” Tracy, 35 U.S. at 95. Thus, if an officer’s injurious conduct was “forbidden by law, or beyond the power which the law confided” to him, “he

would be liable whatever were his motives.” Dinsman

v. Wilkes, 53 U.S. 390, 404 (1851).

In areas where officers were vested with “quasi judicial” discretion, Wilkes v. Dinsman, 48 U.S. 89, 129

(1849), they were still liable for wrongful conduct if

they acted “maliciously,” Thomas M. Cooley, A Treatise on the Law of Torts 411 (1879)—that is, if they

acted “intentionally without just cause or excuse,” id.

at 209 n.3 (quoting Bromage v. Prosser, 4 B. & C. 247,

255 (1825) (Bayley, J.)); accord Joel Prentiss Bishop,

Commentaries on the Non-Contract Law 92, 365-66

(1889); see South v. Maryland, 59 U.S. 396, 403 (1855);

7

Kendall v. Stokes, 44 U.S. 87, 98-99 (1845); Otis v. Watkins, 13 U.S. 339, 355-56 (1815); Dinsman, 53 U.S. at

404; Wilkes, 48 U.S. at 123, 131.

At common law in 1871, police officers had never

enjoyed broad immunity from suit, and “restrictions on

the scope of [their] authority w[ere] routinely applied

throughout the nineteenth century” in damages actions. James E. Pfander, Zones of Discretion at Common Law, 116 Nw. U. L. Rev. Colloquy 148, 167 (2021).

Indeed, throughout the century, courts treated law enforcement as “a ‘ministerial’ act” that was “subject to

ordinary law” and not shielded by judicial or even

“quasi-judicial” immunity. William Baude, Is QuasiJudicial Immunity Qualified Immunity?, 74 Stan. L.

Rev. Online 115, 118-119 (2022); see, e.g., Ely v.

Thompson, 10 Ky. 70, 76 (1820) (describing a justice of

the peace as a “judicial officer” but a constable as a

“ministerial officer”); Sumner v. Beeler, 50 Ind. 341,

342 (1875) (describing defendants in a false-arrest suit

as “ministerial officers”); see also Shanley v. Wells, 71

Ill. 78, 81 (1873) (“If the plaintiff was assaulted and

beaten” by a police officer “without authority of law,”

the plaintiff was “entitled to recover.”).

At the same time, government officials were generally indemnified for their violations. 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, 1906-07

(2010). Therefore, while “[s]ome personal inconvenience may be experienced by an officer who shall be

held responsible in damages for illegal acts, . . . there

can be no eventual hardship,” because “the government in such cases is bound to indemnify the officer.”

Tracy, 35 U.S. at 98-99.

Those principles formed the backdrop for Congress’s enactment of Section 1983. Modern qualified

8

immunity is at odds with the text and purpose of the

statute because it insulates officers from accountability for constitutional violations. See Crawford-El v.

Britton, 523 U.S. 574, 595 (1998) (noting that qualified

immunity “lacks any common-law pedigree and alters

the [statute’s] cause of action itself in a way that undermines the very purpose of § 1983—to provide a

remedy for the violation of federal rights”).

II. Modern Qualified Immunity Is a Judicial

Creation Based Expressly on Policy

Considerations.

Notwithstanding the “categorical language” in Section 1983, Buckley, 509 U.S. at 280 (Scalia, J., concurring), this Court held in Tenney v. Brandhove, 341 U.S.

367 (1951), that “Congress did not intend § 1983 to abrogate . . . [c]ertain immunities [that] were so well established in 1871, when § 1983 was enacted, that we

presume that Congress would have specifically so provided had it wished to abolish them.” Buckley, 509

U.S. at 268 (quotation marks omitted). The Court explained that legislators’ immunity from suits arising

out of their legislative duties traces back at least to the

sixteenth century. Tenney, 341 U.S. at 372.

Employing the same standard, this Court later

found immunity for judges. Because judicial immunity dates back to English common law, see Yates v.

Lansing, 5 Johns. 282, 290-95 (N.Y. 1810), and was

firmly established in American law by 1871, see Bradley v. Fisher, 80 U.S. 335 (1871), this Court held that

if Congress had wished to abolish judicial immunity

under Section 1983, it “would have specifically so provided,” Pierson v. Ray, 386 U.S. 547, 555 (1967).

Central to these holdings were historical findings

that these immunities were so well established in the

common law and so central to the functioning of

9

government that the members of Congress who enacted Section 1983 must have been aware of them and

could not have meant to abrogate them by implication.

The immunity question was, appropriately, treated as

a question of statutory interpretation—albeit one that

required going beyond plain text to consider “the immunity historically accorded the relevant official at

common law and the interests behind it.” Tower v.

Glover, 467 U.S. 914, 920 (1984) (quotation marks

omitted); see Malley v. Briggs, 475 U.S. 335, 342 (1986)

(“[O]ur role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy

choice.”).

In Pierson v. Ray, however, this Court departed

from that approach with respect to immunity for police

officers. The Court in Pierson focused on the specific

type of constitutional claim brought against the officers in that case and analogized it to a specific type of

tort action—false arrest. See 386 U.S. at 555. The

Court then held that because police officers sued for

false arrest may assert “the defense of good faith and

probable cause,” that defense “is also available to them

in the action under [Section] 1983.” Id. at 557.

This new approach had many problems. First, the

Court did not purport to analyze the common law as it

existed in 1871 when Section 1983 was enacted, but

instead cited sources from the 1950s and 1960s in support of its rule. Id. at 555.

Second, even if the same defenses were available to

police officers in false arrest cases in 1871, Pierson

made no attempt to demonstrate that those rules were

so well established and widely known—like the immunity for legislators and judges—that Congress

would have been aware of them and expressly eliminated them had that been its intent.

10

Third, the analysis in Pierson confused common

law immunities with the elements of specific common

law torts. Indeed, the Court simply erred in asserting

that police officers could assert a defense of good faith

and probable cause in false arrest cases. The absence

of good faith and probable cause was, instead, “the essence of the wrong itself,” and thus part of “the essential elements of the tort.” Wyatt v. Cole, 504 U.S. 158,

172 (1992) (Kennedy, J., concurring); accord id. at 176

n.1 (Rehnquist, C.J., dissenting).

The earlier Tenney approach ascribed to Congress

only an intent to preserve true immunities of the common law—broad, categorical principles that shielded

particular officials and functions from liability as a

general matter. But Pierson held that even in the absence of such immunities, plaintiffs could not vindicate

their rights under Section 1983 if they could not recover under whatever state tort was “most closely

analogous” to the constitutional violation they suffered. Id. at 164 (majority opinion).

Pierson never explained why Congress would have

intended to make Section 1983 duplicative of the remedies already available under state tort law. As this

Court has recognized elsewhere, “Section 1983 impose[d] liability for violations of rights protected by the

Constitution, not for violations of duties of care arising

out of tort law.” Baker v. McCollan, 443 U.S. 137, 146

(1979). The statute “was designed to expose state and

local officials to a new form of liability,” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259 (1981),

which would be “supplementary to any remedy any

State might have,” McNeese v. Bd. of Educ., 373 U.S.

668, 672 (1963). As the debates over Section 1983 reflect, the statute was aimed at “injuries, denials, and

privations of rights and immunities under the Constitution,” “not injuries inflicted . . . upon ordinary rights

11

of individuals.” Cong. Globe, 42d Cong., 1st Sess. App.

79 (1871).

While this Court never provided a justification for

Pierson’s “analogous tort” approach, that approach at

least tethered immunity to “limitations existing in the

common law,” Wyatt, 504 U.S. at 170 (Kennedy, J.,

concurring)—limitations “that the statute presumably

intended to subsume,” Crawford-El, 523 U.S. at 611

(Scalia, J., dissenting). The judicial task was still seen

as “essentially a matter of statutory construction.”

Butz v. Economou, 438 U.S. 478, 497 (1978).

What followed, however, was a steady slide toward

“less deference to statutory language and congressional intent, less belief that law is fixed and unchanging, and less commitment to the notion that the judicial function is a merely mechanical one of ‘finding’ the

law.” David Achtenberg, Immunity Under 42 U.S.C.

§ 1983: Interpretive Approach and the Search for the

Legislative Will, 86 Nw. U. L. Rev. 497, 501 (1992).

Statutory interpretation, and the common law backdrop informing it, increasingly took a back seat to “the

Justices’ individual views of sound public policy.” Id.

Tellingly, “it was in the context of Bivens that matters of policy took the reins completely and the Court

abandoned any common law underpinnings to immunity doctrine.” Ilan Wurman, Qualified Immunity and

Statutory Interpretation, 37 Seattle U. L. Rev. 939, 955

(2014). After recognizing an implied cause of action for

damages against federal officials for certain types of

constitutional violations, Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), this Court applied to those actions the doctrine of qualified immunity that it had developed as a

matter of statutory interpretation under Section 1983.

The Court then concluded that “it would be incongruous and confusing . . . to develop different standards of

12

immunity for state officials sued under § 1983 and federal officers sued on similar grounds” under the Bivens

doctrine. Butz, 438 U.S. at 499 (quotation marks omitted). Rejecting the argument that Section 1983’s statutory basis should make a difference, this Court said,

remarkably, that such arguments “would place undue

emphasis on the congressional origins of the cause of

action in determining the level of immunity.” Id. at

501.

Having equated qualified immunity under the Civil

Rights Act of 1871 with qualified immunity under

Bivens, this Court then announced a new, broader formulation of that doctrine: “government officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

Although Harlow’s new formulation arose in a

Bivens action, with no statute to interpret, this Court

“made nothing of that distinction,” Burns v. Reed, 500

U.S. 478, 498 n.1 (1991) (Scalia, J., dissenting), and

later applied Harlow’s novel standard to claims

brought under Section 1983, see Wyatt, 504 U.S. at

165-67. This Court did so even though it had “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson

v. Creighton, 483 U.S. 635, 645 (1987). And this Court

did so even though Section 1983 was enacted to provide a means of enforcing the Fourteenth Amendment’s guarantees just three years after the Amendment was ratified, before it had ever been interpreted

by this Court. A requirement that plaintiffs show the

violation of “clearly established” rights recognized in

13

factually similar prior decisions would have strangled

the statute at birth.

Indeed, this Court was “forthright in revising the

immunity defense for policy reasons.” Crawford-El,

523 U.S. at 594 n.15; see Wyatt, 504 U.S. at 165 (emphasizing that “insubstantial claims should not proceed to trial” (quoting Harlow, 457 U.S. at 815-16));

Anderson, 483 U.S. at 640 n.2 (describing this aim as

“the driving force behind Harlow’s substantial reformulation of qualified-immunity principles”). Gone

was any consideration of Section 1983’s text, much less

the broad remedial goals Congress passed the statute

to advance. This Court subsumed those goals to its

own concern that “fear of personal monetary liability

and harassing litigation will unduly inhibit officials in

the discharge of their duties.” Anderson, 483 U.S. at

638. In doing so, the Court flouted the principle that

“Congress is best positioned to evaluate whether, and

the extent to which, monetary and other liabilities

should be imposed upon individual officers.” Hernandez, 589 U.S. at 101 (quotation marks omitted).

III. This Court Should, at a Minimum, Reaffirm

the Limits on Qualified Immunity that the

Decision Below and Others Like It Have

Disregarded.

If this Court is not willing to revisit its modern

qualified immunity doctrine, it should at least ensure

that lower courts respect the limits of that doctrine.

The Seventh Circuit failed to do so here, and its error

is clear enough to warrant summary reversal. This

Court can send an important signal to the lower courts

simply by reaffirming that a constitutional right may

be “clearly established” even in the absence of factually

identical precedent. See Taylor, 592 U.S. at 8-9.

14

Given “the obviousness” of the constitutional violations here, “any reasonable officer should have realized” that Respondents’ indifference to the conditions

in Mr. Smith’s cell “offended the Constitution.” Id. at

9 & n.2. As the dissent below put it, no reasonable officer could “have thought they could lawfully refrigerate a naked human being for hours.” Pet. App. 35a36a; see id. at 27a (“it is obviously unconstitutional to

deliberately subject a naked prisoner to temperatures

equivalent to and colder than a refrigerator”).

Even the majority acknowledged that “inmates

have a well-established constitutional right to protection from extreme cold.” Pet. App. 21a. Nevertheless,

the majority exempted Respondents from accountability for their obvious constitutional violation simply because officers in past cases subjected inmates to different combinations of temperatures and durations of

confinement. Pet. App. 22a. That result exemplifies

the “overreliance on factual similarity” that this Court

has repudiated, and it defies this Court’s instruction

that “novel” conduct can violate clearly established law

when it is obviously unconstitutional. Hope, 536 U.S.

at 741-42.

Notably, too, Mr. Smith is not relying here on mere

“general statements of the law,” even though such general statements are fully capable “of giving fair and

clear warning” and applying “with obvious clarity.” Id.

at 741 (quotation marks omitted). Instead, Mr. Smith

has highly instructive precedent on his side. See, e.g.,

Wilson v. Seiter, 501 U.S. 294, 304 (1991) (describing

“a low cell temperature at night combined with a failure to issue blankets” as an Eighth Amendment violation); Dixon v. Godinez, 114 F.3d 640, 643-44 (7th Cir.

1997) (discussing precedent establishing that inadequate heating can state an Eighth Amendment claim).

Indeed,

illustrating

just

how

obvious

the

15

constitutional violation here was, the majority below,

the dissent, and the district court all agreed that the

conditions Respondents subjected Mr. Smith to did not

meet the minimal civilized measure of life’s necessities. Pet. App. 19a, 25a-26a, 79a. Yet the court below

dismissed Mr. Smith’s precedent-based argument because it found the temperatures or durations in those

cases to be “more extreme.” Pet. App. 21a-22a.

In the Seventh Circuit, then, “fair and clear warning” is no longer enough to overcome the judge-made

barrier of qualified immunity, notwithstanding this

Court’s admonishments to the contrary. See Taylor,

592 U.S. at 9 & n.2; Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (“We do not require a case directly on

point.”). This Court should fix that and ensure that

qualified immunity does not turn into absolute immunity.

Doing so is especially important because a number

of courts, not just the Seventh Circuit, have begun

marginalizing Taylor and the principles it reaffirmed

into irrelevance—relegating them to only the most “extreme circumstances.” Frasier v. Evans, 992 F.3d

1003, 1015 (10th Cir. 2021) (quoting Taylor, 592 U.S.

at 8); see also, e.g., Rico v. Ducart, 980 F.3d 1292, 1300

n.9 (9th Cir. 2020) (distinguishing Taylor because the

circumstances were not “as extreme”); Cope v. Cogdill,

3 F.4th 198, 206 (5th Cir. 2021) (characterizing Taylor

cases as “rare”). In many recent decisions granting officials qualified immunity for obvious violations, the

lower federal courts have not acknowledged Taylor at

all. See, e.g., Martinez v. High, 91 F.4th 1022 (9th Cir.

2024); Jimerson v. Lewis, 94 F.4th 423 (5th Cir. 2024).

Due to the “particularly egregious facts” of Taylor, 592

U.S. at 9, that decision has failed to provide sufficient

guidance to the lower courts—empowering them to

disregard its message even when, as here, they are

16

confronted with shocking facts. At a minimum, therefore, this Court should clarify that Taylor and the principles it reaffirmed sweep more broadly than some

courts have held.

In sum, Congress enacted Section 1983 to allow victims of constitutional violations to obtain redress in

federal court, stating plainly that the perpetrators of

these violations “shall . . . be liable.” 17 Stat. at 13.

Modern qualified immunity largely undoes that remedy. It honors neither the plain text of Section 1983

nor Congress’s purpose in passing it. Having created

that doctrine, this Court, at the very least, should ensure that lower courts do not erroneously expand it.

This Court can do so here by reaffirming—as it has before—that obviously unconstitutional conduct is subject to liability even without factually identical precedent.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MICHELLE D. BERGER

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 11, 2026

* Counsel of Record