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Qualified Immunity Is the Scourge of Prison Reform

A recent federal appeals court ruling is an egregious example of the problem.

January 7, 2020

Prison reform, or the hope of it anyway, comes in many forms. Enlightened correc­tions offi­cials can impose it by chan­ging policies. Legis­lat­ors can demand it through the passage of new laws. And judges can order it to remedy viol­a­tions of those laws or the Consti­tu­tion. 

There are many ways to stifle prison reform, too. Unions and lobby­ists repres­ent­ing law enforce­ment and correc­tions officers can resist it. Elec­ted offi­cials can evade or delay it. And judges can ignore it by protect­ing those who make or allow pris­ons to be places of deplor­able cruelty.

The Fifth Circuit Court of Appeals surely falls in the latter category. A federal appeals court with juris­dic­tion over Texas, Louisi­ana, and Missis­sippi, it has a long history of anti­pathy toward pris­on­ers. It also now is brim­ming with new Trump appointees. On the Friday before Christ­mas, it quietly and largely upheld a lower federal court’s ruling against a Texas pris­oner named Trent Taylor. Correc­tions officers allegedly laughed in his face when he complained about living for days in unspeak­ably filthy condi­tions. 

The decision stands as a partic­u­larly pungent example of the ways in which the federal courts can stymie prison reform through an over­broad (and in this case absurd) inter­pret­a­tion of the doctrine of “qual­i­fied immunity.” The doctrine shields from civil liab­il­ity public offi­cials, like correc­tions or police officers, who deprive people of their legal rights so long as those rights were not “clearly estab­lished” when they were viol­ated.

Taylor’s story, as chron­icled in court, begins when he was placed in a cell in Septem­ber 2013 at the John T. Mont­ford Unit in Lubbock, Texas, part of the state’s vast prison system. The cell, he alleges, was covered from floor to wall to ceil­ing in feces. He could not drink from the faucet, he test­i­fied, because the faucet itself was covered in human excre­ment. The officers knew about the condi­tion of the cell, Taylor claims, because they joked about the “long week­end” he would have to spend it in. His complaints were ignored for days.

When Taylor finally was trans­ferred to another cell it was, he alleges, a “seclu­sion” cell designed to be danger­ously cold and used on pris­on­ers who exhib­ited signs of mental illness. There was only a drain in this cell — no sink, toilet, or bed — and it was clogged. Taylor was denied a restroom break and ulti­mately urin­ated on himself and slept on the floor in his own urine. The correc­tions officers knew this was happen­ing, and one told Taylor to “deal with it.” In his federal civil rights lawsuit, Taylor alleged that he became seri­ously ill from the ordeal.

Reas­on­able people read­ing Taylor’s alleg­a­tions surely would be appalled by the condi­tions he describes even if they knew noth­ing about the current state of prison reform in Amer­ica. Surely, anyone with a conscience would say that our civil rights laws, at a minimum, should be construed to hold correc­tions officers and offi­cials respons­ible for permit­ting such cruelty to pris­on­ers. Surely, even the most cramped inter­pret­a­tion of the Consti­tu­tion should forbid correc­tions officers from forcing incar­cer­ated people to lay in freez­ing cells covered in their own waste.

Evid­ently not. First, the federal district court judge in Taylor’s case ruled that his cell condi­tions did not create a consti­tu­tional viol­a­tion because he was “only” held there for a few days and had shown no evid­ence of injury as a result of this ordeal. Imagine spend­ing 87 hours living in your own filth and arguing it’s a short period. The judge ruled in favor of the nearly four dozen defend­ants (correc­tions officers and prison offi­cials) Taylor had sued, effect­ively ending his lawsuit far short of the damages and jury trial he was seek­ing.

Taylor and his attor­neys appealed to the Fifth Circuit, which took a differ­ent route but ended up at the same place. In its view, Taylor did allege facts that might estab­lish that his consti­tu­tional rights were viol­ated. There was evid­ence that the officers had acted with “delib­er­ate indif­fer­ence” toward him and had subjec­ted him to a “substan­tial risk of seri­ous harm.” But, the court ruled, under “qual­i­fied immunity” doctrine Taylor had no “clearly estab­lished” right not to be housed for days in his own filth. 

Got that? Because no court had ever ruled it uncon­sti­tu­tional to keep a pris­oner in such horrible condi­tions for “only” a few days, the officers had no reason to consider that he had a right to be free from such condi­tions. Because no federal court had “clearly estab­lished” such a right, no such right exis­ted. This Kafkaesque tauto­logy spares correc­tions officers and their bosses in Texas and around the rest of the coun­try from having to defend to a jury their delib­er­ate indif­fer­ence to incar­cer­ated people.

It’s not just the cruel result of the ruling that makes it so galling. It’s the way in which the judges welcome future consti­tu­tional viol­a­tions. “We do not suggest hold [sic] that prison offi­cials cannot require pris­on­ers to sleep naked on the floor,” the judges wrote in a foot­note, lest they be accused of coddling pris­on­ers. “There can be any number of perfectly valid reas­ons for doing so. Our hold­ing is limited to the extraordin­ary facts of this case, in which Taylor alleges that the floor on which he slept naked was covered in his and others’ human excre­ment.” 

Some say that there is reas­on­able hope that the Supreme Court, led by Justice Neil Gorsuch of all people, will begin to restrict the applic­a­tion of the “qual­i­fied immunity” doctrine.

I am not so sure. I think it’s much more likely that he will endorse or at least not block the Court’s clear trend toward an expan­ded view of the doctrine. That will mean, tragic­ally, that more correc­tions officers who laugh at men forced to live in their own excre­ment will continue to be protec­ted from lawsuits for their miscon­duct, their culp­ab­il­ity, and their heart­less­ness.

A more hope­ful sign is the broad and grow­ing consensus for restrict­ing the scope of qual­i­fied immunity that exists today among legal schol­ars. They see that the doctrine is increas­ingly used as a sword and not a shield by correc­tions officers and cops. They see how judges lazily rely — as they did here — on qual­i­fied immunity to coun­ten­ance even egre­gious miscon­duct. 

Indeed, so long as the federal courts coun­ten­ance such cruelty and debase­ment, so long as men and women have no legal recourse when they are abused like this, prison reform for too many in Amer­ica will be a hollow prom­ise.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.