Joanna Schwartz Profile picture
Feb 22, 2021 8 tweets 2 min read Twitter logo Read on Twitter
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

Oct 9
There is a lot to hate about qualified immunity. But here’s one reason that often escapes notice: in some parts of the country, only “published” decisions can clearly establish the law. And in those same parts of the country, more than 90% of decisions are “unpublished.” A 🧵1/9
In @ShieldedBook I tell the story of Onree Norris. A SWAT team broke down the doors of his home & held him at gunpoint. The warrant called for a search of the house next door. Norris’s house looked nothing like the target house, and he was twice as old as the suspect. 2/9
When Norris sued, the officers got qualified immunity. The 11th Circuit affirmed. Even though there was a prior 11th Cir decision holding unconstitutional nearly identical facts, that decision was unpublished and so didn’t clearly establish the law according to the 11th Cir. 3/9
Read 9 tweets
Mar 12
East Cleveland's made news because 16 of its 40 police officers were indicted for excessive force captured on video btw 2018-22. In response, @SIfill_ tweeted: "Not. Bad. Apples." She's so right. Especially because egregious misconduct by E. Cleveland officers is nothing new.🧵
In 2014, E. Cleveland officers assaulted Arnold Black & locked him in a supply closet. He won a $50 million verdict against the city that the court of appeals upheld, finding the dep't "had an unwritten custom & practice of using violence and arrests to intimidate people.” 2/5
In 2016, Jesse Nickerson was arrested by East Cleveland officers, beaten up in a park, and thrown down a cliff. The officers were fired and the mayor said: “It is a sickening thing to have to deal with as a mayor.” There's more. When I interviewed local civil rights attys...3/5
Read 5 tweets
Jul 16, 2022
280 characters aren’t nearly enough to explain what is wrong with this article that suggests the officers in Uvalde might have hesitated because qualified immunity protections in the Fifth Circuit are too weak. So that’s why I have written this 🧵…
The notion that the Uvalde officers were worried about the threat of being sued when deciding whether to confront the shooter has no basis in reality. Studies have repeatedly found that the threat of suit is not on most officers’ minds when doing their jobs…
…and officers are virtually always indemnified when they are sued, and officers aren’t trained about the facts, holdings, or outcomes of most cases.…,…
Read 11 tweets
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

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