Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine — at odds with both the text of the statute and the common law principles against which it was passed — immunizes public officials who commit illegal misconduct, unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not just a clear legal rule, but a prior case on the books with functionally identical facts.
In Allah v. Milling, 876 F.3d 48 (2d Cir. 2017), the Second Circuit used qualified immunity to shield prison officials who kept an inmate, named Almighty Supreme Born Allah, in dungeon-like, solitary confinement conditions for seven months — all because Mr. Allah had once asked a question about why prison inmates were being denied access to commissary. For this “offense,” Mr. Allah was placed in “Administration Segregation” for over a year, most of which he spent in solitary confinement. He spent 23 hours a day alone in his cell, was handcuffed and shackled anytime he was removed from his cell, and forced to shower in leg irons and wet underwear. To make matters worse, Mr. Allah was, at this time, merely a pretrial detainee who had yet to be convicted of a crime.
Mr. Allah brought a civil rights claim against these prison officials and won a judgment of $62,650 at trial. On appeal, the Second Circuit unanimously agreed that the defendants had violated Mr. Allah’s constitutional rights. The Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520 (1979), makes clear that pretrial detainees cannot be subject to punitive restrictions, and that extreme restrictions unsupported by any legitimate governments are inherently punitive. The Second Circuit held that the prison officials here lacked any legitimate interest in throwing Mr. Allah in solitary confinement, and thus violated his due process rights.
Yet a majority of the panel still granted immunity to the defendants — and denied Mr. Allah redress for his injuries — solely because “Defendants were following an established [prison] practice,” and “[n]o prior decision of the Supreme Court or of this Court . . . has assessed the constitutionality of that particular practice.” That analysis is flatly at odds with existing precedent; even the Supreme Court has rejected the idea that overcoming qualified immunity requires a prior case dealing with the very action at issue. Indeed, in Safford Unified School District #1 v. Redding, 557 U.S. 364, 377 (2009), the Court explicitly stated that “there is no need that ‘the very action in question [have] previously been held unlawful.’”
But more importantly, this case throws into sharp relief the legal, practical, and moral infirmities with qualified immunity in general. Mr. Allah’s petition directly asks the Court to reconsider its qualified immunity jurisprudence, and the Cato Institute has filed an amicus brief in support of this request. This brief is part of Cato’s ongoing campaign to challenge qualified immunity — a doctrine that lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.
This post was originally written for Cato at Liberty.