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,

Petitioner,

v.

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 THE CATO INSTITUTE, AMERICAN

ASSOCIATION FOR JUSTICE,

PUBLIC JUSTICE, AND DUE PROCESS

INSTITUTE AS AMICI CURIAE IN SUPPORT

OF PETITIONER

__________

Jeffrey R. White

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, Ste. 300

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

Matthew P. Cavedon

Counsel of Record

Jay R. Schweikert

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org

(Additional counsel listed on inside cover)

Leah M. Nicholls

PUBLIC JUSTICE

1620 L St. NW, Ste. 630

Washington, DC 20036

(202) 797-8600

lnicholls@publicjustice.net

Shana-Tara O'Toole

DUE PROCESS INSTITUTE

700 Pennsylvania Ave,

Ste. 560

Washington, DC 20003

(202) 558-6683

shana@idueprocess.org

Dated: March 11, 2026

i

QUESTION PRESENTED

The question presented is:

When a government official acts in an obviously

unconstitutional manner, is that sufficient for the

violation to be clearly established, as this Court has

held and other Circuits have ruled in analogous

circumstances, or is a violation clearly established only

if there is binding precedent in a factually

indistinguishable case, as the Seventh Circuit

required here?

ii

TABLE OF CONTENTS

Page(s)

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

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

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

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 7

I. THE DECISION BELOW CANNOT BE

RECONCILED WITH HOPE AND

TAYLOR AND WARRANTS SUMMARY

REVERSAL. ..................................................... 7

A. The Seventh Circuit Applied Exactly

the “Rigid, Overreliance on Factual

Similarity” that this Court Has

Repeatedly Condemned. ........................... 7

B. Gillis v. Litscher Provided

Controlling Notice that this Conduct

Was Unconstitutional—and the

Majority Did Not Grapple with It. ......... 13

C. The Majority’s Reasoning Exposes a

Structural Defect with Qualified

Immunity that Case-by-Case

Correction Cannot Cure.......................... 15

II. THIS CASE ILLUSTRATES HOW

QUALIFIED IMMUNITY SUPPLANTS

JURY ACCOUNTABILITY WITH A

DOCTRINE UNTETHERED FROM

ACTUAL GOOD FAITH. ............................... 17

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Baxter v. Bracey, 590 U.S. 1011 (2020) ....................... 4

Dixon v. Godinez, 114 F.3d 640 (7th Cir.

1997) ................................................................. 11, 15

Frasier v. Evans, 992 F.3d 1003 (10th Cir.

2021) ....................................................................... 19

Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006) .. 13, 14

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........... 6, 18

Hope v. Pelzer, 536 U.S. 730 (2002) .................. 5, 8, 11

Jessop v. City of Fresno, 936 F.3d 937 (9th

Cir. 2019) ................................................................ 19

Kisela v. Hughes, 584 U.S. 100 (2018) ...................... 22

Malley v. Briggs, 475 U.S. 335 (1986) ......................... 4

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ...................................................................... 23

Maryland v. Dyson, 527 U.S. 465 (1999) .................... 7

Pierson v. Ray, 386 U.S. 547 (1967) .......................... 18

Smith v. Kind, 140 F.4th 359 (7th Cir. 2025)

................................................ 8, 9, 10, 11, 12, 14, 19

Taylor v. Riojas, 592 U.S. 7 (2020).......... 3, 5, 8, 11, 12

Wilson v. Seiter, 501 U.S. 294 (1991) ........................ 11

Zadeh v. Robinson, 928 F.3d 457 (5th Cir.

2019) ....................................................................... 17

iv

Other Authorities

Aimee Ortiz, Confidence in Police Is at Record

Low, Gallup Survey Finds, N.Y. TIMES

(Aug. 12, 2020) ....................................................... 22

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 CALIF. L. REV. 201

(2023) ........................................................................ 4

ANNALS OF CONG. (Joseph Gales ed., 1789) .............. 21

Br. of Cross-Ideological Groups as Amici

Curiae in Supp. of Pet’r, Taylor v. Riojas,

592 U.S. 7 (2020) ...................................................... 4

Br. of the Cato Institute as Amicus Curiae in

Supp. of Pet’r, Benning v. Oliver, No. 23644 (filed Jan. 19, 2024) ........................................... 4

Charles W. Wolfram, The Constitutional

History of the Seventh Amendment, 57

MINN. L. REV. 639 (1973) ....................................... 20

Fred O. Smith, Abstention in a Time of

Ferguson, 131 HARV. L. REV. 2283 (2018) ............. 22

Hon. Kathleen M. O’Malley, Foreword: Trial

by Jury: Why It Works and Why It Matters,

68 AM. U. L. REV. 1095 (2019) ................................ 20

Inst. on Race & Just., Promoting Cooperative

Strategies to Reduce Racial Profiling,

NORTHEASTERN UNIV. (2008) ................................. 21

Kenneth S. Klein, The Validity of the Public

Rights Doctrine in Light of the Historical

Rationale of the Seventh Amendment, 21

HASTINGS CONST. L.Q. 1013 (1994)........................ 20

Letter from Thomas Jefferson to Thomas

Paine (July 11, 1789) ............................................. 20

v

Mark W. Bennett, Judges’ Views on

Vanishing Civil Trials, 88 JUDICATURE 306

(2005) ...................................................................... 21

Mike Baker et al., Three Words. 70 Cases. The

Tragic History of ‘I Can’t Breathe.’, THE

N.Y. TIMES (June 29, 2020) .................................... 22

Patrick Jaicomo & Daniel Nelson, Section

1983 (Still) Displaces Qualified Immunity,

49 HARV. J.L. & PUB. POL’Y 151 (2026) .................... 4

Pet. for a Writ of Certiorari, Taylor v. Riojas,

No. 19-1261 (filed Apr. 4, 2020) ............................. 12

Rich Morin et al., Behind the Badge, PEW

RSCH. CTR. (2017) ................................................... 22

THE FEDERALIST No. 83 (Alexander Hamilton) ........ 21

William Baude, Is Qualified Immunity

Unlawful?, 106 CALIF. L. REV. 45 (2018) ................. 4

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999, and focuses on

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.

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in 1946

to strengthen the civil justice system, preserve the

right to trial by jury, and protect access to the courts

for those who have been wrongfully injured. With

members in the United States, Canada, and abroad,

AAJ is the world’s largest plaintiff trial bar.

Throughout its 80-year history, AAJ has served as a

leading advocate for the right of all Americans to seek

legal recourse for wrongful conduct. AAJ members

primarily represent plaintiffs in personal injury

actions, employment rights cases, consumer cases, and

1 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 amici funded its

preparation or submission.

2

frequently represent plaintiffs seeking legal recourse

and accountability under 42 U.S.C § 1983.

Public Justice is a national public-interest

advocacy organization that specializes in high-impact

civil litigation, with a focus on fighting corporate and

governmental misconduct. Public Justice has an

established project devoted to access to justice, and it

has long represented those whose rights have been

violated by law-enforcement officers and other

government officials.

Due Process Institute is a nonprofit, bipartisan,

public interest organization that works to honor,

preserve, and restore procedural fairness in the U.S.

criminal legal system. Founded in 2018, it is guided by

a bipartisan Board of Directors and supported by

bipartisan staff. Due Process Institute creates and

supports achievable bipartisan solutions for

challenging criminal legal policy concerns through

advocacy, litigation, and education.

Amici share a steadfast belief that the Eighth

Amendment’s prohibition against cruel and unusual

punishment lies at the heart of American justice, and

that the rigorous enforcement of this prohibition is

imperative to preserving constitutional government

and promoting accountability.

3

SUMMARY OF ARGUMENT

Petitioner Antonio Smith suffered extraordinary,

deliberate, and unconstitutional mistreatment at the

hands of several Wisconsin prison officials. After being

pepper-sprayed for non-violent resistance to an unwanted medical examination, he was placed naked in

a freezing control cell for 23 hours, in plain contravention of well-established prison procedures. His explicit

requests for clothing and bedding were denied, and one

officer went so far as to condition the provision of these

necessities upon Mr. Smith abandoning his ongoing

hunger strike in protest of other prison conditions.

The Seventh Circuit unanimously agreed that Mr.

Smith’s claims made out a viable Eighth Amendment

violation, and his case closely parallels the set of “particularly egregious facts” that, according to this

Court’s most recent word on the subject, “any reasonable officer should have realized . . . offended the Constitution.” Taylor v. Riojas, 592 U.S. 7, 9 (2020). Just

as Hope v. Pelzer involved deliberate exposure of a captive prisoner to extreme heat as punishment, this case

involves deliberate exposure of a captive prisoner to

extreme cold as coercion—a parallel so close that the

Seventh Circuit’s contrary result cannot be reconciled

with this Court’s precedent. Nevertheless, a panel majority held that qualified immunity prevents Mr.

Smith from presenting his constitutional claims to a

jury. This decision exemplifies the fundamental pathologies of the current qualified immunity regime, as

4

a matter of both underlying theoretical principles and

applied doctrinal practice.

These and other amici have repeatedly argued that

qualified immunity is a fundamentally atextual, ahistorical doctrine that this Court can and should reconsider entirely.2 Section 1983 “on its face does not provide for any immunities,” Malley v. Briggs, 475 U.S.

335, 342 (1986), and the common law of 1871 did not

include anything like the sweeping defense that characterizes qualified immunity today.3 Recent scholarship has further revealed that, shortly after Congress

enacted the Civil Rights Act of 1871, the Reviser of the

Federal Statutes erroneously removed a 16-word

clause from the statute during the codification process

that explicitly abrogated common-law immunities.4

Amici maintain that, in an appropriate case, the Court

should reconsider qualified immunity entirely.

2 See, e.g., Br. of the Cato Institute as Amicus Curiae in Supp. of

Pet’r, Benning v. Oliver, No. 23-644 (filed Jan. 19, 2024); Br. of

Cross-Ideological Groups as Amici Curiae in Supp. of Pet’r, Taylor, 592 U.S. at 7 (filed May 14, 2020).

3 William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L.

REV. 45, 49 (2018); see also Baxter v. Bracey, 590 U.S. 1011, 1013–

14 (2020) (Thomas, J., dissenting from den’l of cert.) (“There likely

is no basis for the objective inquiry into clearly established law

that our modern cases prescribe. Leading treatises from the second half of the 19th century and case law until the 1980s contain

no support for this ‘clearly established law’ test.”).

4 See Alexander A. Reinert, Qualified Immunity’s Flawed Foun-

dation, 111 CALIF. L. REV. 201, 235 (2023); Patrick Jaicomo &

Daniel Nelson, Section 1983 (Still) Displaces Qualified Immunity,

49 HARV. J.L. & PUB. POL’Y 151 (2026).

5

Nevertheless, amici will not reprise those arguments here. Instead, amici write to emphasize two key

points about this case’s relationship to the existing

qualified immunity regime.

First, this case is especially well suited to summary

reversal. The majority’s decision below, like many

lower-court decisions in recent years, flouts the

longstanding principle from Hope v. Pelzer, 536 U.S.

730 (2002)—recently and clearly reaffirmed in Taylor

v. Riojas, 592 U.S. 7 (2020)—that sufficiently obvious

constitutional violations do not require plaintiffs to

identify prior cases with functionally identical facts to

overcome qualified immunity. Moreover, if the egregious nature of the unconstitutional treatment that

Mr. Smith endured were not obvious on its own, the

facts of his case bear a close similarity to the facts in

Taylor itself and even a prior Seventh Circuit case,

which “no reasonable correctional officer could have

concluded [were] constitutionally permissible.” 592

U.S. at 8. Summary reversal would send a clear message to lower courts across the country that they may

not continue to disregard this Court’s repeated instruction on how to properly apply the “clearly established law” standard.

More broadly, this case illustrates a structural defect in the “clearly established law” standard as applied to constitutional prohibitions that exist on a continuum. Where no finite body of precedent can ever establish the full range of unconstitutional conduct, officials who subject prisoners to conditions one degree

6

warmer or one hour shorter than a prior case will always escape liability—not because their conduct is

constitutional, but because it has not yet been litigated

at that precise point on the spectrum. This structural

defect cannot be cured by case-by-case correction

alone; it will continue to generate decisions like this

one indefinitely.

Second, this case illustrates pointedly how the current qualified immunity regime both denies juries

their fundamental role in ensuring public accountability and exacerbates an ongoing crisis of confidence in

public institutions, especially law enforcement. While

this Court has often described qualified immunity as a

kind of “good faith” defense, see Harlow v. Fitzgerald,

457 U.S. 800, 815 (1982), the modern “clearly established law” standard turns almost entirely on the happenstance of the fact patterns of prior cases, not the

actual good faith of defendants. This case makes that

disconnect especially vivid: the officers here acted not

in good-faith uncertainty about the law, but in deliberate pursuit of a coercive strategy—conditioning the

most basic human necessities on a prisoner’s capitulation. Whatever justification qualified immunity has as

a protection for officials navigating genuine legal ambiguity, it has none here. In a future case, if the Court

wishes to address this problem without reconsidering

qualified immunity entirely, it should at least reframe

the doctrine to permit juries in appropriate cases to decide, as a fact question, whether it should have been

7

clear to a § 1983 defendant that their conduct was unlawful.

ARGUMENT

I.

THE DECISION BELOW CANNOT BE

RECONCILED WITH HOPE AND TAYLOR

AND WARRANTS SUMMARY REVERSAL.

As the Petition explains, the case involves

important questions about the proper application of

this Court’s qualified immunity jurisprudence, Pet. at

8–12, as well as divisions between lower courts on the

extent to which claims of Eighth Amendment

deliberate indifference suffice to overcome qualified

immunity, Pet. at 13–14. These are certainly

important questions that this Court could decide to

address on the merits, but summary reversal is also an

especially appropriate resolution here, as the

majority’s decision below was “squarely contrary to

[this Court’s] holdings.” Maryland v. Dyson, 527 U.S.

465, 467 (1999). Specifically, in holding that the

defendants here did not violate “clearly established

law,” the majority effectively required Mr. Smith to

demonstrate a level of factual specificity that this

Court has again and again rejected as the wrong way

to apply qualified immunity.

A. The Seventh Circuit Applied Exactly the

“Rigid, Overreliance on Factual Similarity”

that

This

Court

Has

Repeatedly

Condemned.

For decades, this Court has instructed lower courts

that the “clearly established law” prong of qualified

8

immunity does not require a plaintiff to identify a prior

case decided on functionally identical facts. Hope, 536

U.S. at 739 (rejecting the Eleventh Circuit’s demand

for “materially similar” precedent as a “rigid gloss”

inconsistent with this Court’s cases); Taylor, 592 U.S.

at 8–9 (reversing a grant of qualified immunity

because “no reasonable correctional officer” could have

concluded the conduct at issue “was constitutionally

permissible”). The rule, stated plainly, is that “a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question.” Hope, 536 U.S. at 741

(citation omitted). When a constitutional violation is

sufficiently egregious, qualified immunity is

unavailable, even absent a closely analogous

precedent. And in this particular case, it would be

difficult to overstate how apparent the unlawfulness of

the underlying conduct was, both in its severity and

the intentionality with which it was inflicted.

To restate the most pertinent facts, the incident

began when one of the defendants, Captain Jay Van

Lanen, pepper-sprayed Mr. Smith while he was prone

and defenseless, despite knowing that Mr. Smith

suffered from asthma. Pet. at 3.5 Mr. Smith spent eight

5 The lower court unanimously found that this use of pepper spray

plausibly violated Mr. Smith’s Eighth Amendment rights as well,

but that Captain Van Lanen was nevertheless entitled to qualified immunity. Smith v. Kind, 140 F.4th 359, 369–70 (7th Cir.

2025). There is a colorable argument that, in light of Mr. Smith’s

diminished physical state due to his ongoing hunger strike, his

history of peaceful extractions, and Captain Van Lanen’s

9

minutes struggling to breathe, after which he was

stripped naked and placed in a control cell, with a vent

blowing air at outside temperatures, which fell below

freezing. Id. at 3–4. In violation of typical prison

practices, he was refused clothing, bedding, and a

mattress. Smith v. Kind, 140 F.4th 359, 364 (7th Cir.

2025). After being kept in such conditions for three and

a half hours, he requested these basic necessities and

to be moved to a warmer cell, but those requests were

denied. Id. Twelve hours later, another officer offered

Mr. Smith a smock, but only on the condition that Mr.

Smith abandon his ongoing protest of prison

conditions and submit to future medical evaluations

(which he declined to do). Id. Mr. Smith thus remained

in these conditions, naked and freezing, for 23 hours,

unable even to sleep and spending most of the time on

his feet. Pet. at 4.

As Judge Hamilton explained in detail in his

dissenting opinion, “[d]eliberately exposing a naked

prisoner to extreme cold” could easily make out a claim

for torture under both the United States Torture Act

and the United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment. Smith, 140 F.4th at 375 (Hamilton, J.,

concurring in part and dissenting in part). And the

record clearly establishes that the defendants inflicted

these conditions knowingly and callously. After all,

knowledge of Mr. Smith’s asthma condition, the unlawfulness of

this excessive force was likewise obvious. But as that question is

not at issue in the Petition, amici do not take a position on it.

10

there was no plausible penological reason to keep Mr.

Smith in a freezing cell naked with no protection from

the elements; Captain Van Lanen departed from his

own past practice, which “involved placing a smock,

clothing, and other permitted property in a security

box attached to the cell regardless of whether an

inmate requests such items,” id. at 364; and officers

not only denied Mr. Smith’s explicit request for

clothing, bedding, and a mattress, but they even

attempted to leverage his suffering as a bargaining

chip to convince him to drop his protests. And, of

course, all defendants were well aware that the

weather in late November in Wisconsin could easily

reach freezing temperatures. Id. at 371.

Nevertheless, the panel opinion in this case applied

precisely the approach this Court rejected in Hope.

Acknowledging

Mr.

Smith’s

well-established

“constitutional right to protection from extreme cold,”

the majority nonetheless granted qualified immunity

because it could identify no prior Seventh Circuit case

holding it unconstitutional to house an inmate in a cell

ranging from 25 to 57 degrees Fahrenheit for 23 hours

without clothes or bedding. Id. at 372. That is, the

majority disposed of the “clearly established” inquiry

by observing—correctly, but irrelevantly—that it had

“never held it unconstitutional on closely analogous

facts” to expose a prisoner to these precise

temperatures for this precise duration. Id. As Judge

Hamilton’s dissent recognized, this approach applied

“what the Supreme Court has called ‘a rigid,

11

overreliance on factual similarity.’” Id. at 373

(Hamilton, J., concurring in part and dissenting in

part) (quoting Hope, 536 U.S. at 742).

This is not a close case under Hope and Taylor. The

constitutional prohibition on deliberately subjecting a

prisoner to extreme cold was well-established long

before the events in question. See, e.g., Wilson v. Seiter,

501 U.S. 294, 304 (1991) (noting as self-evident that “a

low cell temperature at night combined with a failure

to issue blankets” may establish an Eighth

Amendment violation); Dixon v. Godinez, 114 F.3d

640, 642 (7th Cir. 1997) (“[P]risoners have a right to

protection from extreme cold.”). Moreover, the

majority ignored not just the general principles of

qualified immunity reaffirmed in Taylor, but even the

eerie similarity between the underlying facts in

Taylor. After all, both cases involved corrections

officers deliberately placing an inmate, naked, in a

cold cell for an extended period of time, while ignoring

his complaints. Smith, 140 F.4th at 362; Taylor, 592

U.S. at 8.

Admittedly, certain facts in the Taylor case could

be perceived as even more egregious than those here.

For example, the cells that Trent Taylor was kept in

were also “shockingly unsanitary”—one covered in

feces, the other with a clogged drain that caused raw

sewage to overflow into the cell. Taylor, 592 U.S. at 7.

But certain facts in the present case are even more

extreme along other dimensions. For example, while

the cell in Taylor was described as “frigidly cold,” id.

12

at 8, Mr. Smith’s cell reached literally freezing

temperatures. Smith, 140 F.4th at 371. Also, Mr.

Taylor was at least given a blanket,6 while Mr. Smith

was denied even that meager protection against the

cold, in violation of typical prison practices. Finally,

none of the officers in Mr. Taylor’s case went so far as

the officer in Mr. Smith’s case who actively leveraged

his suffering as part of a negotiating tactic to convince

him to drop his ongoing protest regarding (of all

things) prison conditions. See Smith, 140 F.4th at 364

(“Twelve hours later, another officer approached

Smith and proposed an offer: if Smith submitted to

future medical evaluations, he could have a smock; if

not, he would remain naked and cold. Smith declined

the offer.”); Pet. at 3.

Of course, at the end of the day, debating which set

of facts is more egregious is missing the larger

doctrinal point that Taylor reaffirmed—when

corrections officers, who are “deliberately indifferent,”

subject inmates to dangerous, inhumane conditions

with no demonstration of “necessity or exigency” or a

showing that the conditions of confinement “could not

have been mitigated,” then “any reasonable officer

should . . . realize[] that [such] conditions of

confinement offended the Constitution.” 592 U.S. at 9.

Those conditions are met in the present case no less

than in Taylor—the striking factual parallels just

6 See Pet. for a Writ of Certiorari at 6, Taylor v. Riojas, No. 19-

1261 (filed Apr. 4, 2020).

13

make it all the more astounding that majority ignored

this instruction.

The defendants here did not face a novel legal

question about whether extreme cold was ever

unconstitutional. They knew the law’s clear command;

they at most simply assumed that their specific

conduct, not yet condemned on identical facts, was

beyond its reach. That is precisely the assumption that

Hope and Taylor foreclose.

B. Gillis v. Litscher Provided Controlling

Notice

that

This

Conduct

Was

Unconstitutional—and the Majority Did

Not Grapple with It.

The majority’s “clearly established” analysis rests

on the premise that no Seventh Circuit precedent

addressed sufficiently analogous facts. But that

premise is wrong, and the majority’s failure to engage

the controlling contrary authority is itself reason

enough for this Court’s intervention.

In Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006),

the Seventh Circuit confronted facts that were

functionally the same as those presented here.

Wisconsin prison officials—the same state, the same

correctional system—left an inmate naked in his cell

without clothing, bedding, or a mattress for five days

as part of a “Behavioral Modification Program,” while

cold air blew through a vent. Id. at 489–90. The

prisoner reported that he had to walk around his cell

for 14 hours a day simply to stay warm. Id. at 490. The

court held that the plaintiff had created a triable issue

14

on his Eighth Amendment claim and, critically,

rejected the defendants’ qualified immunity defense,

explaining tersely but unambiguously that it was wellestablished that “denial of shelter, heat, and hygiene

items implicated an inmate’s constitutional rights.” Id.

at 495.

The court in Gillis further addressed the

intentional character of the defendants’ conduct,

specifically noting that the evidence indicated prison

officials used Behavioral Modification Programs “as a

way to deal with inmates without regard” for

Wisconsin law. Id. at 494. That observation maps

directly onto the facts here, where officers conditioned

the provision of clothing and bedding on Mr. Smith’s

abandonment of his hunger strike—a textbook

example of using the denial of basic necessities as an

instrument of behavioral coercion, not merely as an

inadvertent consequence of administrative inaction.

Gillis directly answers the question the panel

majority

mistakenly

claimed

remained

yet

unanswered: whether it was clearly established that

Wisconsin prison officials could not deliberately deny

clothing and shelter to a naked inmate to coerce

behavioral compliance. Gillis held that it was. The

majority’s contrary conclusion—that “before today, we

had never held it unconstitutional on closely

analogous facts,” Smith, 140 F.4th at 372—was plainly

incorrect. The violation of Mr. Smith’s rights was

clearly established under any plausible rubric for

evaluating that question.

15

C. The Majority’s Reasoning Exposes a

Structural

Defect

with

Qualified

Immunity that Case-by-Case Correction

Cannot Cure.

The majority’s approach exposes a deeper problem

with the “clearly established law” standard as applied

to constitutional protections that exist on a continuum

rather than as bright-line rules. The Eighth

Amendment prohibition on deliberately exposing a

prisoner to extreme cold does not operate through a

fixed threshold—it depends on a multi-factor

assessment of temperature, duration, available

protection, and surrounding circumstances. See Dixon,

114 F.3d at 644. That is appropriate; constitutional

analysis of conditions of confinement is inherently

fact-sensitive.

But this flexibility creates a structural

vulnerability in the qualified immunity framework.

Because no finite set of prior decisions can ever

establish the unconstitutionality of every specific

combination

of

temperature,

duration,

and

circumstance, officials can virtually always escape

liability by ensuring that their conduct differs in some

measurable respect from whatever has previously

been condemned. Suppose a court holds that confining

a prisoner at 20°F constitutes an Eighth Amendment

violation. The next official holds his prisoner at 21°F.

He escapes liability: the prior case involved a colder

cell, so the right was not clearly established as to his

specific conduct. The official after him chooses 22°F

16

and escapes on the same logic. And so on. At each

degree of incremental warming, each defendant can

truthfully say that no prior case condemned precisely

his temperature. An overwrought qualified immunity

doctrine mistakes pinpoints on a map for territorial

outlines—treating the specific coordinates of each

prior holding as the full extent of the constitutional

prohibition.7 The practical result is that the original

holding—the one case where a court finally said

enough—becomes not a floor protecting future

prisoners, but a ceiling above which officials know they

are immune. It is never obvious what marginal

difference constitutes the constitutional line.

The result is an immunity regime that is,

structurally, most protective of the most creative

abusers. Officials who push the boundaries of what

has previously been condemned can always argue

novelty. Only those who simply recreate the exact

conditions of prior cases cannot. Perversely, the

doctrine as applied by the majority below rewards

officials for engineering deprivations that differ just

enough from prior holdings to claim the protection of

uncharted legal territory—not because their conduct is

constitutional, but because it occupies some point that

has not yet been specifically litigated. See Zadeh v.

7 For that matter, even were a new officer to set the temperature

at 19°F, his attorney could simply point to other distinctions to

win qualified immunity, such as that the prisoner was held for 30

seconds less time or placed in a larger cell and so had more room

to exercise and so generate body heat.

17

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

J., concurring in part, dissenting in part) (“To some

observers, qualified immunity smacks of unqualified

impunity, letting public officials duck consequences for

bad

behavior—no

matter

how

palpably

unreasonable—as long as they were the first to behave

badly.”).

This Court cannot fix this problem by identifying,

one case at a time, each unconstitutional combination

of temperature and duration. Hope’s “obvious clarity”

standard exists precisely to prevent that approach

from becoming the de facto rule. The majority below

paid lip service to Hope and Taylor while applying an

analysis that rendered both effectively meaningless in

the context of conditions-of-confinement claims.

Summary reversal here, grounded in the specific

instruction that the “clearly established law” inquiry

cannot demand precedent on all fours when the

underlying constitutional command is clear and the

conduct at issue is deliberate, would help ensure that

lower-court misunderstanding of qualified immunity

jurisprudence does not wholly undermine § 1983’s

deterrent and remedial purpose.

II. THIS CASE ILLUSTRATES HOW QUALIFIED IMMUNITY SUPPLANTS JURY ACCOUNTABILITY WITH A DOCTRINE UNTETHERED FROM ACTUAL GOOD FAITH.

The structural defect identified above is not merely

an artifact of how this particular majority reasoned; it

reflects a deeper dysfunction in what qualified

18

immunity has become—a doctrine that now operates

largely without reference to the actual good faith of the

officials it protects. That is ahistorical. Throughout the

history of the Court’s qualified immunity jurisprudence, it has characterized the doctrine as a kind of

“good faith” defense for public officials. In Pierson v.

Ray, 386 U.S. 547 (1967), effectively the first Supreme

Court case to recognize a form of qualified immunity,

the Court defended the doctrine on the basis that “the

defense of good faith and probable cause” would have

been available at common law for a similar claim. Id.

at 557. Even Harlow, which first articulated the modern “clearly established law” regime, justified that

standard as a kind of “objective” good faith. 457 U.S.

at 818 (“If the law at that time was not clearly established, an official could not reasonably be expected to

anticipate subsequent legal developments, nor could

he fairly be said to ‘know’ that the law forbade conduct

not previously identified as unlawful.”).

But as this case vividly illustrates, qualified immunity today has become divorced from anything that

could reasonably be called “good faith.” The officers

here were not acting under pressure, navigating uncertain law, or making split-second judgments that

turned out to be wrong. They were engaged in a deliberate, calculated strategy of using exposure to freezing

temperatures as leverage to extract behavioral compliance from a prisoner. The record establishes that when

Mr. Smith, naked and shivering after 23 hours in a cell

where temperatures dropped below freezing, asked for

19

clothing, an officer responded not with concern for his

immediate welfare but with a bargain: submit to future medical evaluations or stay cold. Smith, 140 F.4th

at 364. This was not a mistake.

Moreover, many other qualified immunity

decisions in the lower courts reveal that even officers

who know they are acting unlawfully may still receive

qualified immunity. For example, in Frasier v. Evans,

992 F.3d 1003 (10th Cir. 2021), the Tenth Circuit held

that police officers who had arrested a bystander for

recording them in public were entitled to qualified

immunity, even though they had received explicit

training that such conduct was constitutionally

protected. Id. at 1016 (“[I]t is therefore ‘irrelevant’

whether each officer defendant actually believed—or

even in some sense knew—that his conduct violated a

statutory or constitutional right . . . .”); see also Jessop

v. City of Fresno, 936 F.3d 937 (9th Cir. 2019) (holding

that officers alleged to have used a search warrant to

steal from plaintiffs were entitled to qualified

immunity). The hunt for identical fact patterns

replaces the search for the justice Congress sought to

ensure for victims of civil rights violations when it

enacted § 1983.

One possible solution to this problem, assuming the

Court is hesitant to reconsider qualified immunity

entirely, would be to clarify that successfully invoking

it demands actual good faith, not the allegedly

“objective” good faith of Harlow’s clearly established

law standard. Modifying the doctrine would imply

20

that, if a defendant wished to argue that he could not

have reasonably known that his actions were

unlawful, such an argument would need to be decided

as a factual matter by a jury. And that arrangement

would be consonant with the foundational role that

civil juries were meant to play in the American

constitutional order.

The right to a jury trial long predates even the

Seventh Amendment. “Legal writers and political

theorists who were widely read by the colonists were

firmly of the opinion that trial by jury in civil cases was

an important right of freemen.”8 The Framers

unambiguously conceived of this right not just as a

means to ensure redress for victims, but as a vital

check on state power.9 Thomas Jefferson described the

right to a civil jury trial as “the only anchor, ever yet

imagined by man, by which a government can be held

to the principles of its constitution.”10 James Madison

referred to this right as being “as essential to

secur[ing] the liberty of the people as any one of the

pre-existent rights of nature.”11 Indeed, so aligned

8 Charles W. Wolfram, The Constitutional History of the Seventh

Amendment, 57 MINN. L. REV. 639, 653–54 (1973).

9 Kenneth S. Klein, The Validity of the Public Rights Doctrine in

Light of the Historical Rationale of the Seventh Amendment, 21

HASTINGS CONST. L.Q. 1013, 1017 (1994) (collecting Founders’

statements).

10 Letter from Thomas Jefferson to Thomas Paine (July 11, 1789),

https://tinyurl.com/2efzm634 (punctuation modernized).

11 Hon. Kathleen M. O’Malley, Foreword: Trial by Jury: Why It

Works and Why It Matters, 68 AM. U. L. REV. 1095, 1098 (2019)

21

were the members of the Founding Generation on this

point that, as Alexander Hamilton famously declared

in Federalist No. 83, “[t]he friends and adversaries of

the plan of the convention, if they agree in nothing

else, concur at least in the value they set upon the trial

by jury.”12

By precluding juries from hearing otherwise viable

§ 1983 claims, the contemporary “clearly established

law” standard not only enfeebles one of the

Constitution’s key checks on state power, it also

exacerbates an ongoing crisis of confidence in law

enforcement. Policing is dangerous, difficult work, and

without the trust of their communities, officers cannot

safely and effectively carry out their responsibilities.13

This trust is undermined by a lack of avenues for

public accountability: “when a sense of procedural

fairness is illusory, this fosters a sense of second-class

citizenship, increases the likelihood people will fail to

comply with legal directives, and induces anomie in

some groups that leaves them with a sense of

(citing Mark W. Bennett, Judges’ Views on Vanishing Civil Trials, 88 JUDICATURE 306, 307 (2005) (quoting 1 ANNALS OF CONG.

454 (Joseph Gales ed., 1789) (discussing civil cases))).

12 THE FEDERALIST No. 83 (Alexander Hamilton).

13 See Inst. on Race & Just., Promoting Cooperative Strategies to

Reduce Racial Profiling, NORTHEASTERN UNIV., at 20–21 (2008)

(“Being viewed as fair and just is critical to successful policing in

a democracy. When the police are perceived as unfair in their enforcement, it will undermine their effectiveness.”). Available at

https://tinyurl.com/4dmm2atp.

22

statelessness.” Fred O. Smith, Abstention in a Time of

Ferguson, 131 HARV. L. REV. 2283, 2356 (2018).

Nor are these concerns abstract or academic. In recent years, in the aftermath of many high-profile police

killings, Gallup reported that trust in police officers

had reached a 27-year low. Aimee Ortiz, Confidence in

Police Is at Record Low, Gallup Survey Finds, THE

N.Y. TIMES (Aug. 12, 2020).14 And that loss in confidence has been driven in large part by the perception

that officers who commit misconduct are rarely held

accountable15—a perception shared even by police officers themselves.16

When qualified immunity shields obviously unconstitutional conduct from jury consideration, it reinforces the public perception that government officials

operate under different rules than ordinary citizens—

that the law, as Justice Sotomayor has observed, is devolving into “an absolute shield for law enforcement

officers.” Kisela v. Hughes, 584 U.S. 100, 121 (2018)

(Sotomayor, J., dissenting). That perception corrodes

the trust between communities and the institutions

that serve them, and it makes the work of the many

14 Available at https://tinyurl.com/kzmbmsr2.

15 See Mike Baker et al., Three Words. 70 Cases. The Tragic His-

tory of ‘I Can’t Breathe.’, THE N.Y. TIMES (June 29, 2020),

https://nyti.ms/3P33wt8.

16 See Rich Morin et al., Behind the Badge, PEW RSCH. CTR. 40

(2017) (finding that 72 percent of officers themselves disagreed

that officers who do a poor job are held accountable). Available at

https://pewrsr.ch/2z2gGSn.

23

officers who faithfully honor their constitutional obligations harder, not easier.

If the Court declines to reconsider qualified immunity in its entirety—an outcome amici continue to

believe is warranted—it should at minimum restore

the doctrine’s connection to actual good faith by permitting juries to decide, as a factual matter, whether

the defendant knew or should have known that his

conduct violated the plaintiff’s rights. This rule would

preserve protection for officials genuinely navigating

legal uncertainty while withdrawing it from officials,

like those here, whose conduct was deliberate and

whose purpose was coercive. It also would honor the

common-law tradition, which treated good faith as an

element of particular torts rather than a freestanding

objective safe harbor divorced from the defendant’s actual state of mind. And it would restore to juries the

role that both the Constitution and § 1983 assign to

them—as the community’s voice on whether those entrusted with coercive power have abused it.

CONCLUSION

“The government of the United States has been

emphatically termed a government of laws, and not of

men.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803). But as Chief Justice Marshall admonished, our

government “will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the

violation of a vested legal right.” Id. The Seventh

Circuit below acknowledged that Mr. Smith’s rights

were violated but nevertheless held that the law

24

furnishes him no remedy. A system that openly

acknowledges a violation yet denies a remedy for want

of functionally identical precedent is one of caprice

rather than principle. The decision below should be

summarily reversed.

Respectfully submitted,

Jeffrey R. White

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, Ste. 300

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

Leah M. Nicholls

PUBLIC JUSTICE

1620 L St. NW, Ste. 630

Washington, DC 20036

(202) 797-8600

lnicholls@publicjustice.net

Shana-Tara O'Toole

DUE PROCESS INSTITUTE

700 Pennsylvania Ave,

Ste. 560

Washington, DC 20003

(202) 558-6683

shana@idueprocess.org

Dated: March 11, 2026

e

Matthew P. Cavedon

Counsel of Record

Jay R. Schweikert

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org