On March 24, Mark Begnaud and Michael Eshman filed a petition for certiorari in Quinette v. Reed et al., Doc. 20-1336, asking the U.S. Supreme Court to abolish or revisit the doctrine of qualified immunity, the judge-made doctrine that protects government officials from financial liability when they violate a person’s constitutional rights.

In the case, our client Denis Quinette was being detained in a holding cell at the Cobb County Jail when he politely asked a jailer to make a phone call. The jailer responded by suddenly and violently throwing our client across the cell and breaking his hip, then standing over him and taunting him while our client screamed in pain.  A portion of the video can be seen in the AJC’s reporting on the case.

Unsurprisingly, this jailer had a long history of inmate abuse, including several physical attacks on restrained inmates, sexual harassment of a nurse at the jail, and numerous other documented reports of abusive, threatening, racist, and xenophobic behavior towards inmates at the jail.  Despite this background, the jailer had received no meaningful discipline or training.  We sued the jailer as well as the supervisors who had turned a blind eye to the jailer’s repeated acts of violence and abuse.

Cobb County’s attorneys filed a motion to dismiss the complaint based on qualified immunity.  The trial court judge denied the motion, finding that the jailer’s attack and the supervisors’ years of indifference were so clearly unconstitutional that qualified immunity did not apply.

The 3-judge Eleventh Circuit panel agreed that the jailer’s actions were clearly unconstitutional, but a 2-1 panel majority found that the supervisors were protected by qualified immunity.  The panel majority took extremely granular view of what is a “clearly established” constitutional violation and found that the supervisors had done enough to be immune from suit because the jailer had been suspended before for conduct unrelated to inmate abuse.

After the Eleventh Circuit’s decision, the sheriff’s office decided they would no longer defend nor indemnify this jailer. After continuously allowing him to abuse inmates, they hung him out to dry – chalk him up as a “bad apple” so that they do not have to pay for our client’s hip replacement surgery.

We appealed that decision to the Supreme Court arguing, first, that the 2-1 panel majority applied qualified immunity improperly.  The panel majority’s approach to the supervisors’ years of inaction was a misguided and microscopic application of qualified immunity.

In our second request, we are asking the Court to reconsider the application of qualified immunity on a larger scale.  We are asking the Court to abolish qualified immunity entirely or, at a minimum, to limit its usage.  We are specifically asking the Court to stop applying qualified immunity in cases of supervisory liability because the justification for the doctrine – protecting officers from fiscal liability for split-second decisions in the field – makes no sense in the supervisory setting.  Our petition argues:

While qualified immunity is unjust in its normal application … the injustice is at its apex when it insulates a decision made by a committee of supervisors to adopt a formal policy, to allow a pattern of unconstitutional behavior, or to allow a jailer with a reprehensible disciplinary history to continue abusing inmates.  This Court has explained that qualified immunity is especially necessary in the context of an officer’s split-second decision.  … If that is the case, then this Court should consider the corollary – qualified immunity is less important, and should be applied with less specificity, when supervisors have the time and experience to make reasoned decisions. 

We recognize that the odds are against us.  While some scholars think that the Court is open to revisiting qualified immunity, unfortunately we believe the stronger argument is that their consideration of (and rejection of) 12 cases last year marked the best chance for the Court’s reconsideration of the doctrine.

Regardless of the odds, this is a cause worth pursuing.  Qualified immunity is bad policy, a moral failure, and has no basis in the law.  Nevertheless, it is the law of the land because the Supreme Court says so, even though they made it up out of nowhere.  We pray that the Court reconsiders the doctrine in our case or in another, or that someday there is the will in Congress to curb its use.  Until then, people like our client Denis will have no recourse after they are injured by agents for the state.