The Supreme Court just made an important and promising shift on qualified immunity in a case called McCoy v. Alamu- although they did it so quietly that you wouldn't notice if you didn't look closely. Here's the scoop, in a thread...
In a case brought by @RightsBehind, a Texas corrections officer beat a prisoner without provocation. The district court granted the officer QI and the 5th Circuit Court of Appeals affirmed. ca5.uscourts.gov/opinions/pub/1…
In the opinion, the 5th relied heavily on Supreme Court QI precedent, saying “[t]he pages of the United States Reports teem with warnings about the difficulty of” showing that the law was clearly established and ruling that no prior court decision had sufficiently similar facts.
But the Supreme Court granted cert, reversed, and remanded, instructing the 5th Circuit to reconsider its decision in light of Taylor v. Riojas, a SCT decision from 11/2020 ruling no prior factually similar case was necessary when any officer would know what they did was wrong.
The Supreme Court issued no decision in McCoy. But I think they're sending a message that lower courts can deny QI if the officer's misconduct was clear, even if there's no case with identical facts - not only in prison conditions cases, but in excessive force cases as well.
This may be how the Supremes take action on qualified immunity in the near future-not with a sweeping opinion doing away with QI, but with a quieter message, heard by the lawyers and judges who are listening, that it's stepping back from its most robust depictions of QI's power.
I'd love a sweeping pronouncement ending QI - but I'm here to celebrate these quieter gestures too.

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More from @JCSchwartzProf

12 Feb
Have you ever wondered what qualified immunity is or what it does or where it came from? Now's the time to get your questions answered. #npap #PoliceAccountability
Here's a little history. Qualified immunity was created by the Supreme Court in 1967, to shield police and other government officers from damages liability when they acted in "good faith." But in 1982, the Court said it should protect officers unless...
... they violated "clearly established law." Today the Supreme Court has instructed lower courts that they must dismiss damages claims against officers unless there is a prior opinion in which a court held virtually identical facts to be unconstitutional.
Read 4 tweets
2 Nov 20
Today’s summary reversal in Taylor v. Riojas is a big deal. In it, SCOTUS breathed new life into the notion that qualified immunity should be denied if the constitutional violation is obvious - a ruling the Court made almost 20 years ago but has ignored until today. 1/8
One of the most damaging aspects of qualified immunity is the notion that plaintiff must find a prior court decision with virtually identical facts to establish officers were on notice of their misconduct. It’s a nearly impossible standard to meet - and ridiculous to boot...2/8
...because officers aren’t actually educated about the facts and holdings of these cases (so they aren’t actually on notice of these decisions.) papers.ssrn.com/sol3/papers.cf…. 3/8
Read 9 tweets
17 Jun 20
I appreciate @danepps reference to my research in his @nytimes oped. I agree that abolishing qi is not a cure-all. But I disagree with the conclusion that eliminating qi is "unlikely to alter police behavior." Here's why. 1/7 nytimes.com/2020/06/16/opi…
I agree that many other factors--not just qi--limit lawsuits' power & have studied some that Epps describes-officers are usually indemnified, police budgets are insulated from lawsuit costs, & there are other barriers to relief, including the Court's 4th Amendment standards. 2/7
But eliminating qi would have more than symbolic power. FWIW, symbolic power on its own is important-qi decisions insulating officers despite egregious behavior tell officers they can violate people's rights with impunity & tell people their rights don't matter. H/t Sotomayor 3/7
Read 7 tweets
1 Jun 20
It's high time to #EndQualifiedImmunity. But what impact would ending qi have? Some say qi is responsible for the horrors of the past weeks, some say other barriers to accountability mean little would change. I say both are somewhat right. This thread explains why. 1/6
Ending qi would mean an end to court opinions that send the message that officers can violate peoples' rights without consequence. Ending qi would also reduce the costs, risks, and complexity of civil rights litigation, so might encourage more attorneys to bring these cases. 2/6
But qi isn't the silver bullet some hope. Without qualified immunity, government indemnification, budgeting, and risk-management practices, and the many other drivers of government behavior would continue to minimize lawsuits’ deterrent effects. 3/6
Read 6 tweets

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