Taylor v. Barkes: Summary reversal is part of a qualified immunity trend
The defense of qualified immunity enables government officials to defend against constitutional claims on the ground that the right they violated was not “clearly established” and therefore a reasonable officer would not have known that his conduct violated the law. It’s an oft-asserted and powerful defense. And at the Supreme Court, it’s the rationale for a steady string of summary reversals, including yesterday’s decision in Taylor v. Barkes. It’s worth asking what function these reversals serve.
In yesterday’s case, the family of Christopher Barkes, who committed suicide as an inmate at a Delaware prison, sued various state officers and entities for failing to take adequate care to prevent the suicide even though Barkes had a history of psychiatric treatment and had previously attempted suicide. The district court denied summary judgment to the defendants. The Third Circuit affirmed, holding both that the defendants were not entitled to qualified immunity and that Delaware Department of Corrections Commissioner Stanley Taylor and prison warden Raphael Williams could be subject to supervisory liability for failing to supervise prison staff if their failure reflected deliberate indifference (which is the standard for the underlying Eighth Amendment claim).
Petitioning for certiorari, Taylor and Williams argued that the Third Circuit’s decision “deepen[ed]” a circuit split over the standard for supervisory liability in the wake of the Supreme Court’s 2009 decision in Ashcroft v. Iqbal. They took the sweeping position that Iqbal abolished supervisory liability entirely for constitutional civil rights violations. They also argued in the alternative that they were entitled to qualified immunity.
The Supreme Court summarily reversed, in a brief per curiam opinion holding that there was no violation of a clearly established Eighth Amendment right. Because the relevant inquiry examines the right defined with specificity as of the date of the asserted violation, the Court’s opinion focused on “an incarcerated person’s right to the proper implementation of adequate suicide prevention protocols,” as of November 2004. The holding — that this particular right was not clearly established at that particular time — is by its nature narrow and doesn’t provide much guidance about the state of the law, including whether the right is recognized today. And the qualified immunity test the Court applied — which does not “require a case directly on point, but” does require that “existing precedent … have placed the statutory or constitutional question beyond debate” — is well-established and was not in controversy here; the Third Circuit quoted that same standard in support of the holding that the Supreme Court reversed.
This is not the first instance of a summary reversal immunity on qualified immunity grounds following the Supreme Court’s 2009 decision in Pearson v. Callahan, which permitted courts to decide qualified immunity questions on “clearly established” grounds alone without reaching whether the underlying constitutional claim is viable. Indeed, this is the fourth successive year in which there has been such a summary reversal.
But what does a qualified-immunity summary reversal accomplish? It doesn’t develop or clarify the legal standard either for qualified immunity or for the substantive constitutional right (at least, not as it stands today). And it seems out of step with the Court’s general practice, stated in its rules, that certiorari is “rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law.”
One of two things appears to be happening. One possibility is that the qualified immunity reversal is a kind of compromise position reached when some of the Justices want to consider a broad argument raised by the government officials seeking certiorari (here, for instance, that supervisory liability has been abolished), other Justices don’t want to take the case at all, and there’s enough uncertainty about potential swing votes that no one is comfortable with a full grant of cert. The result is a narrow reversal that satisfies Justices who want to protect the government officials before them and mollifies others who might fear a broader ruling that could harm civil rights plaintiffs across a range of cases.
The other possibility is that, in occasional cases, the Justices can’t resist stepping in when they think a case has been wrongly decided – in the same manner that the Justices summarily reverse other types of cases, particularly (though not exclusively) grants of habeas corpus. Qualified immunity gives them a easy way to do so without committing to full consideration of a case that is otherwise not cert.-worthy. (Here, for instance, the petition’s claim regarding a circuit split on supervisory liability was vigorously disputed by Barkes’s family.)
The first theory reflects a more cynical, horse-trading view of the certiorari process and seems inconsistent with grants of certiorari in cases in which the outcome seems hard to predict. But if the second theory is correct, wouldn’t we see dissents expressing concern that the Court is engaging in what appears to be freewheeling error-correction in favor of government defendants? One possible answer is that the impulse to correct certain errors is shared by the entire Court, although – given the controversy that civil rights cases often attract – such unanimity would be unusual.
One thing seems clear: Pearson has given the Court a new tool to summarily reverse denials of qualified immunity without making much if any law. Whether that tool has benefited civil rights plaintiffs by averting broader decisions following plenary consideration or helped government defendants by providing summary relief in cases where certiorari might otherwise simply be denied can be known only by the Justices.