Sotomayor Trashes SCOTUS Majority For Cherry-Picking Qualified Immunity Cases To Reverse

from the get-out-of-lawsuit-free-card dept

Qualified immunity — crafted out of thin air by the US Supreme Court — has rarely been anything but an easy way for government employees to duck out of lawsuits before they’re actually asked to defend themselves against allegations of rights violations.

The Supreme Court has continually narrowed this doctrine, pretty much ensuring that if every single fact of an allegation doesn’t perfectly align with precedential rulings, qualified immunity will be awarded. The Supreme Court has ensured no further movement will take place by continually refusing to establish rights violations, even when it (very rarely!) disagrees with a lower court’s granting of qualified immunity.

The doctrine has been memorably pilloried more than once by appellate judges. Most famously, Judge Don Willett of the Fifth Circuit Appeals Court had this to say about the qualified immunity doctrine — something tends to reward rights violators just because they happened to find a slightly different way to violate someone’s rights.

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. 

That was the wind-up. Here’s the pitch:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

Justice Sotomayor’s dissent [PDF] isn’t as immediately quotable, but it still delivers a stinging indictment of the qualified immunity doctrine. The facts of the case are unpleasant, as they almost always are when government defendants start invoking qualified immunity.

Green Bay, Wisconsin jail staff responded to prisoner Antonio Smith’s refusal to submit to a wellness check (on day 46 of his hunger strike) by pepper spraying him in the face, ordering him to strip naked, and taking him to the health unit. When Smith refused the wellness check, he was dumped clothed in nothing but a small towel into an unheated, unfurnished “control cell” for the next 23 hours. The temperature in the cell ranged from “25 to 57 degrees Farenheit,” according to uncontested testimony.

When Smith was first placed in the cell around noon, Van Lanen told Smith that Smith could request a shower any time and that he would come back to discuss “‘clothing and stuff,’” but he never returned. Ibid. Three and a half hours later, Smith requested clothing, bedding, and a mattress from Lieutenant Timothy Retzlaff and asked to be moved to a warmer cell given the cold. Retzlaff said he would check with Van Lanen. Twelve additional hours went by with no word from Van Lanen or Retzlaff. Then, around 3 o’clock in the morning, a different officer told Smith that if he submitted to future wellness checks, he could have a smock, but that otherwise, “he would remain naked and cold.” Ibid. Smith declined. Another eight hours came and went without any word from Van Lanen or Retzlaff. Smith remained naked and frigid overnight as the temperature dropped below freezing to 25 degrees. After 23 hours, prison staff removed Smith from the cell. Smith later stated that he stayed on his feet for most of those 23 hours because it was too painful to sit, lie down, or sleep.

The Seventh Circuit Appeals Court actually said exactly this in its ruling granting qualified immunity to the defendants.

The Seventh Circuit held that the officers violated Smith’s Eighth Amendment right to be free from cruel and unusual punishment but nevertheless granted them qualified immunity, reasoning that the Circuit “had never held it unconstitutional on closely analogous facts to house an inmate in a cell that ranged in temperature from 25 to 57 degrees over a 23-hour period without clothes or a way to keep warm.”

Yep, that’s how fucking insane this doctrine is. The court even said this was a rights violation, but since it hadn’t said the same thing earlier about a nearly exactly matching set of circumstances, the defendants apparently had no way of knowing tossing someone naked in a freezing cell for nearly 24 hours would violate the prisoner’s rights.

As Sotomayor points out, the Seventh Circuit appeared to willfully disregard its own precedent when handing down this ruling.

As Judge Hamilton explained in dissent, the Seventh Circuit has itself held that intentionally subjecting prisoners to extreme cold conditions without any way to stay warm violates the Eighth Amendment. In Gillis v. Litscher (2006), for example, the Circuit held that a reasonable jury could find that prison officials violated a prisoner’s Eighth Amendment right when they deliberately left him naked in a cell blowing cool air for five days as part of an effort to “conform [his conduct] to the rules.” [S]ee Del Raine v. Williford,(1994) (officers deliberately strip-searched prisoner in cell for 15 to 30 minutes when windchill was 40 to 50 degrees below zero). The Seventh Circuit has also held that, when cold conditions are the product of heating-system failures, officers violate the Eighth Amendment if they are aware of such conditions and fail to take corrective measures such as providing an alternative way to keep warm.

That should have been enough for SCOTUS to review this one and, hopefully, send it back with a reminder that QI readings need to be narrow, but perhaps not so narrow they provoke gasps of disbelief.

But that’s not how this Supreme Court majority operates. Sotomayor calls them out for only reviewing certain QI cases. You know the ones.

This Term… the Court has exercised its discretion to summarily reverse supposed errors that were far less clear than the one here. See, e.g., McCarthy v. Hernandez, 607 U. S. _ (2026) (per curiam); Zorn v. Linton, 607 U. S. (2026) (per curiam); see also Smith v. Scott, 608 U. S. __ (2026) (summarily vacating and remanding denial of qualified-immunity in light of Zorn). If those cases were clear enough for summary action, the Court here should have readily concluded, based on precedent and basic human decency, that it is beyond debate that it is cruel and unusual to lock someone intentionally in a freezing prison cell completely naked for 23 hours.

The Court’s decision not to do so today exacerbates its asymmetrical trend of declining to intervene when courts wrongly afford officers the benefit of qualified immunity, but unflinchingly summarily reversing when it believes courts have wrongly denied officers the protection of qualified immunity.

This would be hypocrisy if it were being carried out by people who actually maintained a pretense of judicial fairness. But it’s being carried out by people who actively believe in the message they’re sending to the public, as well as to the administration they are so clearly devoted to pleasing.

Reversing only denials of qualified immunity sends the regrettable message that, when choosing between shielding government officials from liability and vindicating individuals’ constitutional rights, this Court will almost always choose the former.

Sotomayor is right. The message being sent is “regrettable.” Unfortunately for America, the people sending it have no regrets at all.

Filed Under: 7th circuit, 8th amendment, police misconduct, qualified immunity, rights violations, sonia sotomayor, supreme court