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.…
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.
For more about Taylor and McCoy...…

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More from @JCSchwartzProf

Jun 9, 2021
Qualified immunity strikes again. In this case, there actually was a prior court decision holding similar conduct unconstitutional - but the court hadn’t “published” the opinion - even tho it was publicly available - so it couldn’t clearly establish the law.
For those not in the weeds with this stuff, when courts issue a decision they can indicate whether it is “for publication.” If so, it’s included in actual books of cases-where, long ago, people went to read about them. But now, decisions-including “unpublished ones”-are online.
The 11th Circuit-and several others-have held that the law isn’t clearly established unless it is in a published opinion - presumably because they assume officers would only read published opinions. But, as I have shown in my research, this presumption is doubly unfounded.
Read 5 tweets
May 2, 2021
Thrilled that my newest article, "Qualified Immunity's Boldest Lie" is now in print. Many many thanks to the fabulous @UChiLRev editors who worked on the article.…

What IS qualified immunity's boldest lie? Glad you asked. (Thread.)
To defeat QI, plaintiffs have to find prior cases with virtually identical facts. The SCT says these factually analogous cases are necessary to notify officers about the illegality of their conduct. But officers aren't actually educated about the facts and holdings of most cases.
I've reviewed 100s of use of force policies, training
outlines, and briefing materials provided to California officers, and they clearly show that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.
Read 7 tweets
Apr 21, 2021
We don’t have specifics, but sounds like Republican Senator Tim Scott is proposing to end qualified immunity and make cities, not officers, liable. This is HUGE folks. Let me explain why.…
Qualified immunity currently slams the courthouse doors against plaintiffs unless they can find a prior court case with virtually identical facts. It increases the costs and complexity of civil rights litigation. It obscures the contours of the Constitution. It is bad bad bad.
One of the justifications for qualified immunity is to shield officers from financial liability in civil rights cases. But QI isn’t necessary to serve this role because officers virtually never pay anything in settlements and judgments even when plaintiffs can overcome QI.
Read 11 tweets
Feb 12, 2021
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
Nov 2, 2020
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.)…. 3/8
Read 9 tweets
Jun 17, 2020
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…
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

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