Duke Law Journal Online

VOLUME 71 SEPTEMBER 2021

THE SUPREME COURT’S RETICENT

QUALIFIED IMMUNITY RETREAT
KATHERINE MIMS CROCKER †

ABSTRACT
The recent outcry against qualified immunity, a doctrine that
disallows damages actions against government officials for a wide
swath of constitutional claims, has been deafening. But when the
Supreme Court in November 2020 and February 2021 invalidated
grants of qualified immunity based on reasoning at the heart of the
doctrine for the first time since John Roberts became Chief Justice, the
response was muted. With initial evaluations and competing
understandings coming from legal commentators in the months since,
this Essay explores what these cases appear to say about qualified
immunity for today and tomorrow.
The Essay traces idealistic, pessimistic, and optimistic impressions
of these cases’ importance from the perspective of a qualified-immunity
critic. The Essay argues that the optimistic view probably gets things
right in that the Court is taking tentative steps forward by precluding
some of the doctrine’s most extreme consequences. The Essay then
contends that this modest move nevertheless demonstrates why those
concerned about qualified immunity should focus not only on the
courts, but also on the other branches of government—and not only on
one doctrine, but also on constitutional-tort law as a whole. In and
beyond the recent reform-minded moment, we should think big about
how to improve constitutional enforcement: bigger than the judiciary
and bigger than qualified immunity.

INTRODUCTION
If you missed a recent Supreme Court case rejecting a claim of
qualified immunity (yes, rejecting a claim of qualified immunity)
without merits briefing or oral argument, you are not alone. With the
decision issued November 2, 2020, it was bound to get lost in the

Copyright © 2021 Katherine Mims Crocker.

† Assistant Professor of Law, William & Mary Law School. For thoughtful guidance and
feedback, thank you to Will Baude, Brandon Hasbrouck, Alli Orr Larsen, Colin Miller, Bill Mims,
and Joanna Schwartz. For tireless and skillful research assistance, thank you to William & Mary
law students Bobby Nevin and Melissa Ruby and to William & Mary law librarian Michael
Umberger.
2 DUKE LAW JOURNAL ONLINE [Vol. 71:1

shuffle. November 2, after all, was the day before Election Day, and
legal commentators, like much of the American public, were focused
on the protracted ballot count and contentious presidential transition
for months afterward.
What is clear is that the summary reversal in Taylor v. Riojas 1 and
a follow-up order in McCoy v. Alamu2 deserve more attention than
they have received. To call qualified immunity a hot topic would risk
understatement. As part of the movement for police reform and racial
justice amplified by George Floyd’s murder last year, reconsidering
qualified immunity has become a cause célèbre. 3 A large reason, as the
ensuing discussion describes, is because of the way the Roberts Court
has coddled qualified immunity, which in extensive circumstances
blocks lawsuits seeking money damages against government officials
for federal constitutional violations. Taylor and McCoy deviate from
that theme.
Less clear are to what doctrinal end these cases may lead and,
therefore, to what extent the legal community, and especially those
who criticize the Court’s overaggressive and undertheorized qualified-
immunity case law, should consider them significant. This Essay
explores what Taylor and McCoy appear to say about qualified
immunity for today and tomorrow—that is, about where the doctrine
stands now and where it could go from here.
To help set the stage: qualified immunity’s canonical
formulation comes from the 1982 case Harlow v. Fitzgerald. 4
Concerned about “subject[ing] government officials . . . to the costs of
trial” and “the burdens of broad-reaching discovery,” the Court in
Harlow declared that “government officials performing discretionary
functions, generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” 5 Harlow itself was a case against White House officials. 6 But
the Court quickly expanded the doctrine to cover essentially all
executive officials in the local, state, and federal systems—including

1. Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam).

2. McCoy v. Alamu, 141 S. Ct. 1364 (2021) (mem.).
3. See Madeleine Carlisle, The Debate over Qualified Immunity Is at the Heart of Police
Reform. Here’s What to Know, TIME (June 3, 2021, 6:35 PM), https://time.com/6061624/what-is-
qualified-immunity/?s=09 [https://perma.cc/R9Y8-WJ46].
4. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
5. Id. at 817–18.
6. Id. at 802 (identifying the defendants as “senior White House aides to former President
Richard M. Nixon”).
2021] QUALIFIED IMMUNITY RETREAT 3

line-level law-enforcement and corrections officers. 7 Over time, the

Court likewise expanded the doctrine to cover more and more conduct
by narrowing the notion of clearly established rights, such as through
limiting which sources of law count in the analysis. 8 Increasingly for
nearly forty years, therefore, qualified immunity had caused plaintiffs
alleging constitutional violations to face difficulties securing judgments
for monetary relief. Enter Taylor and McCoy.
This Essay proceeds in four short parts. Part I outlines the
background of and decision in Taylor, and Part II does the same thing
for McCoy. Part III asks what these cases mean for qualified immunity
today. This Part employs the perspective of a qualified-immunity critic
to identify and assess idealistic, pessimistic, and optimistic
understandings of the opinions, arguing that the optimistic outlook is
probably the most accurate. Part IV asks what Taylor and McCoy
mean for qualified immunity tomorrow. This Part contends that while
these cases move courts closer to a sensible constitutional-enforcement
scheme, much remains to be done beyond both the judicial system and
qualified immunity itself.

I. TAYLOR
Trent Michael Taylor, a Texas state prisoner, sued prison
officials under 42 U.S.C. § 1983 for violating the Eighth Amendment
by allegedly placing him in conditions the Supreme Court called
“shockingly unsanitary.” 9 Taylor claimed that over six days, officials
housed him first in a cell “covered” with “‘“massive amounts” of feces’:
all over the floor, the ceiling, the window, the walls, and even ‘packed
inside the water faucet.’” 10 Officials then purportedly moved him to a
“frigidly cold cell,” where he was “left to sleep naked in sewage”
because the room “was equipped with only a clogged drain in the floor
to dispose of bodily wastes.” 11
The defendants asserted qualified immunity, and the Fifth
Circuit affirmed the district court’s decision granting it. 12 While the
Fifth Circuit said that Taylor “showed genuine disputes about a
constitutional violation,” it concluded that the defendants did not have

7. See Katherine Mims Crocker, Qualified Immunity and Constitutional Structure, 117
MICH. L. REV. 1405, 1432–33 (2019).
8. See id. at 1414.
9. Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam).
10. Id. (quoting Taylor v. Stevens, 946 F.3d 211, 218 (5th Cir. 2019)).
11. Id.
12. See id.; id. at 54 (Alito, J., concurring in the judgment).
4 DUKE LAW JOURNAL ONLINE [Vol. 71:1

“‘fair warning’ that their specific acts” infringed his rights. 13 The
Supreme Court disagreed with the Fifth Circuit, vacating the judgment
and remanding the matter in an exercise known as a summary
reversal. 14 The case was on summary judgment, so the Court’s
disposition had the effect of sending it back for additional proceedings
(and perhaps settlement).
The Fifth Circuit’s ruling in favor of the defendants on qualified-
immunity grounds was foreseeable even given the egregious
allegations because of the arc of Supreme Court precedent. Prior to
Taylor, the Court had not rejected an assertion of qualified immunity
on the substance of the defense since Groh v. Ramirez 15 in 2004, a year
before Chief Justice Roberts joined the Court. Over and over again,
the Court instead instructed tribunals they should grant qualified
immunity to “all but the plainly incompetent or those who knowingly
violate the law.” 16 Cases from this timeframe showed what a low bar
the Court was using. In Safford Unified School District v. Redding, 17 for
instance, the Court granted qualified immunity to school officials who
strip-searched a thirteen-year-old girl for pills after finding “common
pain relievers equivalent to two Advil” she had allegedly distributed. 18
And in Kisela v. Hughes, 19 the Court granted qualified immunity to a
police officer who without warning repeatedly shot a woman holding a
kitchen knife at her side. 20

13. Taylor, 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
14. See Taylor, 141 S. Ct. at 54; STEPHEN M. SHAPIRO, KENNETH S. GELLER, TIMOTHY S.
BISHOP, EDWARD A. HARTNETT & DAN HIMMELFARB, SUPREME COURT PRACTICE 5-36 (11th
ed. 2019) (“This kind of reversal order usually reflects the feeling of a majority of the Court that
the lower court result is so clearly erroneous, particularly if there is a controlling Supreme Court
precedent to the contrary, that full briefing and argument would be a waste of time.”); id. at 5-37
(characterizing some summary vacaturs in the same manner as summary reversals).
15. See Groh v. Ramirez, 540 U.S. 551, 564 (2004).
16. E.g., Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam) (quoting Ashcroft v. Al-Kidd,
563 U.S. 731, 743 (2011)).
17. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009).
18. Id. at 368–69, 375–76. The Court explained that two school officials told the girl “to
remove her clothes down to her underwear, and then ‘pull out’ her bra and the elastic band on
her underpants.” Id. at 374. The Court said that while “[t]he exact label for this” conduct was “not
important,” a “strip search” was “a fair way to speak of it.” Id.
19. Kisela v. Hughes, 138 S. Ct. 1148 (2018) (per curiam).
20. Id. at 1150–52. The officer had “arrived on the scene after hearing a police radio report
that a woman was engaging in erratic behavior with a knife.” Id. at 1150. At the time the officer
fired, the woman “had taken steps toward another woman standing nearby, and had refused to
drop the knife after at least two commands to do so.” Id. The dissent argued, however, that “[t]he
record, properly construed at this stage,” indicated that “at the time of the shooting,” the woman
“stood stationary about six feet away” from the other woman and “appeared ‘composed and
content.’” Id. at 1155 (Sotomayor, J., dissenting) (quoting the record).
2021] QUALIFIED IMMUNITY RETREAT 5

To be fair, the Court during this period occasionally ruled

against officials claiming qualified immunity. In Tolan v. Cotton, 21 for
instance, the Justices in 2014 vacated and remanded a judgment for
proper application of the summary-judgment standard. 22 And in Sause
v. Bauer, 23 the Justices in 2018 did the same thing for proper application
of the motion-to-dismiss standard. 24
Never until Taylor, however, did the Roberts Court deny a claim
of qualified immunity on grounds going to the heart of the defense—
that the alleged conduct “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have known,”
to quote the Harlow test. 25 The Court in Taylor stated that “[q]ualified
immunity shields an officer from suit when she makes a decision that,
even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances she confronted.” 26 But the Court ruled
that “no reasonable correctional officer could have concluded that,
under the extreme circumstances of this case, it was constitutionally
permissible to house Taylor in such deplorably unsanitary conditions
for such an extended period of time.” 27

II. MCCOY
Like Taylor, Prince McCoy was a Texas state prisoner at the
time of the allegations underlying his case. McCoy claimed that a guard
sprayed him “directly in the face with mace for no reason,” causing
“‘burning skin and eyes, congested lungs, difficulty breathing, stomach
pain, vision impairment, anxiety, nightmares, depression, and other

21. Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam).

22. Id. at 651. The plaintiff, Robbie Tolan, has done remarkable work recounting his story
about surviving a police shooting set in motion by a botched license-plate lookup. See Barry
Svrluga, The Black Baseball Prospect, the Police Shooting and the Club He Never Wanted To Join,
WASH. POST. (Dec. 31, 2020, 4:00 AM), https://www.washingtonpost.com/sports/2020/12/31/
robbie-tolan-police-shooting [https://perma.cc/CN7Z-JWBJ].
23. Sause v. Bauer, 138 S. Ct. 2561 (2018) (per curiam).
24. Id. at 2563.
25. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
26. Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam) (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam)).
27. Id.
6 DUKE LAW JOURNAL ONLINE [Vol. 71:1

emotional distress.’” 28 McCoy sued the guard for excessive force under
the Eighth Amendment. 29
While the Fifth Circuit said a reasonable jury could have
concluded that McCoy suffered a constitutional wrong, the court
nevertheless granted the guard qualified immunity. 30 Partly because an
administrative report found that the guard “used less than the full can
of spray,” the Fifth Circuit said “it was not beyond debate that”
McCoy’s allegations “crossed the line dividing a de minimis use of force
from a cognizable one.” 31
McCoy sought review, and the Supreme Court responded in a
two-sentence order: “The petition for a writ of certiorari is granted.
The judgment is vacated, and the case is remanded to the United States
Court of Appeals for the Fifth Circuit for further consideration in light
of Taylor v. Riojas,” 32 which had not yet come down when the lower
court considered McCoy’s case. That articulation is customary for a
“GVR” (grant, vacate, and remand)—a maneuver the Court often
makes where it has issued a decision with the potential to affect the
outcome of a case on the certiorari docket since the case was decided
below. 33

28. Petition for Writ of Certiorari at 4–5, McCoy v. Alamu, 141 S. Ct. 1364 (2021) (mem.)
(No. 20-31) (quoting McCoy v. Alamu, 950 F.3d 226, 229 (5th Cir. 2020)),
https://www.supremecourt.gov/DocketPDF/20/20-31/147498/20200710160817184_McCoy%20
Cert%20Petition%20to%20File.pdf [https://perma.cc/28QM-M3US]. More specifically, McCoy
suggested that the guard was upset with another prisoner who threw water and that the guard
took his anger out on McCoy after the other prisoner blocked his own cell from the spray. Id. at
4.
29. Id. at 5.
30. McCoy, 950 F.3d at 232–33.
31. Id. at 233.
32. McCoy, 141 S. Ct. at 1364.
33. See SHAPIRO, GELLER, BISHOP, HARTNETT & HIMMELFARB, supra note 14, at 4-21
(explaining that a GVR may be used where “[a] court of appeals decision predates [a] conflicting
Supreme Court decision” to allow the lower court to reconsider the matter “in the light of the
recent decision”); see also Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per
curiam) (explaining that a GVR may be used “[w]here intervening developments . . . reveal a
reasonable probability that the decision below rests upon a premise that the lower court would
reject if given the opportunity for further consideration, and where it appears that such a
redetermination may determine the ultimate outcome of the litigation”); Henry v. City of Rock
Hill, 376 U.S. 776, 777 (1964) (per curiam) (explaining that a GVR “indicate[s] that [the Court]
found [its intervening decision] sufficiently analogous and, perhaps, decisive to compel re-
examination of the case”).
2021] QUALIFIED IMMUNITY RETREAT 7

III. TODAY
Taylor and McCoy are significant simply for softening the
decade-plus streak of extreme deference to defendants on qualified
immunity’s central issue of whether the relevant right was sufficiently
clear. But what do these decisions mean for the doctrine today? As
with so many Supreme Court actions, the answer lies in the eye of the
beholder. But contextual clues lend support to a middle-of-the-road
understanding.
At one pole, an idealist might think Taylor and McCoy represent
a major upheaval in qualified-immunity law. Professor Colin Miller, for
instance, has argued that these cases may have “significantly shrunk
the qualified immunity defense and expanded the constellation of cases
in which citizens can vindicate violations of their constitutional
rights.” 34 After all, Taylor not only stopped the sixteen-year run of the
Court refusing to reject the substance of a qualified-immunity
assertion; McCoy also appeared to confirm that Taylor reinvigorated a
relatively plaintiff-friendly theory that many analysts had assumed the
Court abandoned long ago. 35 This was the notion from the 2002 case
Hope v. Pelzer 36 that “officials can still be on notice that their conduct

34. Colin Miller, Essay, The End of Comparative Qualified Immunity, 99 TEX. L. REV.
ONLINE 217, 224 (2021) [hereinafter Miller, Comparative Qualified Immunity] (contending in
particular that “comparative qualified immunity”—through which “government officials who
violated plaintiffs’ constitutional rights immunized themselves from liability by citing to cases in
which similar, less egregious conduct was deemed constitutional”—“might have met its end”); see
also Anya Bidwell & Patrick Jaicomo, Opinion, Lower Courts Take Notice: The Supreme Court
Is Rethinking Qualified Immunity, USA TODAY (Mar. 2, 2021, 8:59 AM),
https://www.usatoday.com/story/opinion/2021/03/02/supreme-court-might-rethinking-qualified-
immunity-column/4576549001 [https://perma.cc/H3HK-DSEW] (stating that “[t]hese are still
early days in the reconsideration—if not ultimate rejection—of the court-created doctrine” but
that “the Supreme Court may now be entering a new dawn on qualified immunity”); Colin Miller,
The Supreme Court Issues a (Possibly) Landmark Ruling on Qualified Immunity,
EVIDENCEPROF BLOG (Feb. 23, 2021), https://lawprofessors.typepad.com/evidenceprof/2021/02/
yesterday-the-united-states-supreme-court-issued-a-summary-disposition-inmccoy-v-alamu-
that-could-end-up-being-a-landmark-r.html [https://perma.cc/W5GQ-ER25] (suggesting that
Taylor and McCoy amount to “a seismic shift in qualified immunity law that will great [sic]
constrict the availability of the qualified immunity test”).
35. See, e.g., Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness,
23 WM. & MARY BILL RTS. J. 913, 946–47 (2015); Karen Blum, Erwin Chemerinsky & Martin A.
Schwartz, Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 TOURO L.
REV. 633, 654, 657 (2013); Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of
Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and
Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113
MICH. L. REV. 1219, 1247 (2015).
36. Hope v. Pelzer, 536 U.S. 730 (2002).
8 DUKE LAW JOURNAL ONLINE [Vol. 71:1

violates established law even in novel factual circumstances” 37—in

essence, where no factually on-point precedent exists.
The Fifth Circuit in Taylor wrote that while “the law was clear
that prisoners couldn’t be housed in cells teeming with human waste
for months on end,” the fact that the court “hadn’t previously held that
a time period so short [as six days] violated the Constitution” meant
Taylor’s claim was “doom[ed].” 38 Not so, the Justices said, relying on
Hope for the proposition that “a general constitutional rule already
identified in the decisional law may apply with obvious clarity to the
specific conduct in question.” 39 Similarly, the Fifth Circuit in McCoy
reasoned that “[t]he dispositive question is whether the violative
nature of particular conduct is clearly established.” 40 Satisfying this
standard, the court continued, “‘is especially difficult in excessive-force
cases’ such as McCoy’s, because ‘the result depends very much on the
facts of each case.’” 41 By invoking Taylor in vacating this judgment, the
Justices suggested that the McCoy panel parsed the precedent too
finely. 42
At the other pole, a pessimist might think Taylor and McCoy
mean (at most) that qualified immunity is not quite absolute immunity,
a doctrinal cousin that generally forbids damages actions for federal
constitutional claims challenging legislative, judicial, and limited other
functions regardless of how outrageously unlawful the defendant’s

37. Id. at 741.

38. Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019).
39. Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam) (quoting Hope, 536 U.S. at
741); see Erwin Chemerinsky, SCOTUS Hands Down a Rare Civil Rights Victory on Qualified
Immunity, ABA J. (Feb. 1, 2021, 9:11 AM), https://www.abajournal.com/columns/article/
chemerinsky-scotus-hands-down-a-rare-civil-rights-victory-on-qualified-immunity
[https://perma.cc/FYU2-UH7L] (“Taylor v. Riojas is especially important because it reaffirms
Hope v. Pelzer and that there does not need to be a case on point for a plaintiff to prevail and
overcome qualified immunity.”).
40. McCoy v. Alamu, 950 F.3d 226, 232 (5th Cir. 2020) (quoting Mullenix v. Luna, 577 U.S.
7, 12 (2015) (per curiam)).
41. Id. at 233 (quoting Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019)).
42. In Taylor, the Court rejected the Fifth Circuit’s reliance on “‘ambiguity in the caselaw’
regarding whether ‘a time period so short [as six days] violated the Constitution.’” 141 S. Ct. at 54
n.2 (quoting Taylor, 946 F.3d at 222). The decision to which the Fifth Circuit pointed, the Court
said, “is too dissimilar, in terms of both conditions and duration of confinement, to create any
doubt about the obviousness of Taylor’s right.” Id. (citing Davis v. Scott, 157 F.3d 1003, 1004 (5th
Cir. 1998)). By ordering reconsideration in light of Taylor, the Court indicated that the Fifth
Circuit’s reliance on prior caselaw in McCoy may have likewise been insufficient to support
qualified immunity there. See McCoy, 950 F.3d at 233 (stating that “[i]n somewhat related
circumstances, we held that spraying a prisoner with a fire extinguisher ‘was a de minimis use of
physical force and was not repugnant to the conscience of mankind’” (quoting Jackson v.
Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (per curiam)).
2021] QUALIFIED IMMUNITY RETREAT 9

conduct may have been. 43 One commentator, for instance, has argued
even in light of Taylor that “[t]he Supreme Court’s interpretation of
qualified immunity has effectively granted absolute immunity to
government officials.” 44
As it turns out, recent actions had made the contrast between
qualified and absolute immunity seem far from tautological. For just
one example, consider Jessop v. City of Fresno, 45 where the plaintiffs
alleged that police officers stole property valued at hundreds of
thousands of dollars after seizing it while executing a search warrant. 46
The Ninth Circuit granted the defendants qualified immunity on the
ground that no clearly established law declared this conduct
unconstitutional. 47 By denying certiorari in a case presenting such
extreme allegations, 48 the Court arguably suggested that qualified
immunity provided protection as strong as absolute immunity would
have.
An optimist—less and more hopeful than the idealist and the
pessimist, respectively—might think Taylor and McCoy represent
some progress in the right direction while recognizing that they
probably do not fundamentally transform qualified-immunity doctrine.
Cato Institute Research Fellow Jay Schweikert, for instance, has
written that while Taylor and McCoy “suggest the Justices want to curb
the worst excesses of the doctrine,” these cases “also suggest the

43. For an overview of absolute-immunity doctrine and how it differs from qualified-
immunity doctrine, see RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER &
DAVID L. SHAPIRO, HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 1038–39, 1043–47 (7th ed. 2015); and see generally Erwin Chemerinsky, Absolute
Immunity: General Principles and Recent Developments, 24 TOURO L. REV. 473 (2008).
44. Nathaniel Rubin, Taylor v. Riojas: Qualified Immunity in 2020, ARIZ. ST. L.J. BLOG
(Feb. 1, 2021), https://arizonastatelawjournal.org/2021/02/01/taylor-v-riojas-qualified-immunity-
in-2020/ [https://perma.cc/D3KQ-BW9K]. Relatedly, in an opinion recognizing Taylor, the
Seventh Circuit stated that “[d]etermining whether an officer violates clearly established law
requires a look at past cases with specificity” but that the “assessment does not require a case with
identical factual circumstances, lest qualified immunity become absolute immunity.” Lopez v.
Sheriff of Cook Cnty., 993 F.3d 981, 988, 991 (7th Cir. 2021).
45. Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019), cert. denied, 140 S. Ct. 2793 (2020)
(mem).
46. Petition for Writ of Certiorari at 5–7, Jessop v. City of Fresno, 140 S. Ct. 2793 (2020)
(mem.) (No. 19-1021), https://www.supremecourt.gov/DocketPDF/19/19-1021/133072/202002141
33249205_19-__%20Jessop%20Petition%202.14.2020%20Final.pdf [https://perma.cc/9PWH-
YSGL].
47. Jessop, 936 F.3d at 939.
48. Jessop, 140 S. Ct. at 2793.
10 DUKE LAW JOURNAL ONLINE [Vol. 71:1

Supreme Court is not going to take up the larger question of whether

qualified immunity itself should be reconsidered.” 49
The optimist knows there are several factors pushing against an
idealistic interpretation. Taylor’s principal opinion is only about two
pages long, avoiding more questions than it answers. The Justices
decided both Taylor and McCoy as part of their much-maligned
“shadow docket” without merits briefing or oral argument, 50 both of
which could have put more fundamental issues on the table. And the
majority in Taylor called the allegations “particularly egregious,” 51
meaning (perhaps depending on one’s perception of the facts
underlying McCoy 52) the case may reveal relatively little about the
Court’s posture toward more run-of-the-mill government misconduct.
What is more, during the previous summer, the Court passed over
multiple qualified-immunity cases teeing up the doctrine for revision
or repudiation. 53 Had the Court wanted to reconsider the doctrine in a
broader way, those cases presented a prime opportunity. 54
While suggesting that Taylor has some teeth, McCoy is even
more ambiguous in certain ways. A GVR (unlike a summary reversal)
means not necessarily that the lower court’s judgment was incorrect,

49. Jay Schweikert, The Supreme Court Won’t Save Us from Qualified Immunity, CATO
INST.: CATO AT LIBERTY (Mar. 3, 2021, 4:58 PM), https://www.cato.org/blog/supreme-court-
wont-save-us-qualified-immunity [https://perma.cc/2899-4J2U]; see also Adam Liptak, Cracks in
a Legal Shield for Officers’ Misconduct, N.Y. TIMES: SIDEBAR (Mar. 25, 2021),
https://www.nytimes.com/2021/03/08/us/supreme-court-qualified-immunity.html
[https://perma.cc/5TGX-3KJ8] (quoting Professor Alex Reinert as stating that “[t]he Supreme
Court remains very committed to qualified immunity being a forceful defense in civil rights cases
and certainly in police excessive force cases”).
50. See, e.g., William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L.
& LIBERTY 1, 1 (2015) (coining the term “shadow docket” to describe “a range of orders and
summary decisions that defy [the Court’s] normal procedural regularity”); id. at 18 (observing
that “the Court could do more to reassure us that” the products of the shadow docket are not
“thoughtless or the result of unjustified inconsistency”); Stephen I. Vladeck, Essay, The Solicitor
General and the Shadow Docket, 133 HARV. L. REV. 123, 156–58 (2019) (discussing the shadow
docket’s “[m]essiness,” especially in the context of the federal government seeking stays of
injunctions).
51. Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam).
52. See Miller, Comparative Qualified Immunity, supra note 34, at 223 (stating that while
the conduct alleged in McCoy “was unconstitutional, it would be difficult to characterize it as
‘particularly egregious’ without making a similar finding about most other unconstitutional
behavior by government officers who seek qualified immunity”).
53. Josh Gerstein, Supreme Court Turns Down Cases on ‘Qualified Immunity’ for Police,
POLITICO (June 15, 2020, 3:08 PM), https://politi.co/2BcpYwm [https://perma.cc/7SW3-F5G3].
54. The Court has also denied other petitions seeking to overturn grants of qualified
immunity since then. See Hoggard v. Rhodes, 141 S. Ct. 2421 (2021) (mem.), denying cert. to 973
F.3d 868 (8th Cir. 2020); Howse v. Hodous, 141 S. Ct. 1515 (2021) (mem.), denying cert. to 953
F.3d 402 (6th Cir. 2020).
2021] QUALIFIED IMMUNITY RETREAT 11

but rather that the lower court’s logic was incomplete in light of
subsequent events. 55 So in McCoy, the Fifth Circuit—which in the
normal course sent the case back to the district court “in accordance
with the judgment of the Supreme Court” while “express[ing] no view”
about what should happen on remand 56—could potentially hold that
the guard deserves qualified immunity again. 57 For these reasons and
others, there is ample cause to doubt that Taylor and McCoy signify a
sharp shift in the Court’s overall attitude about constitutional
enforcement.
The pessimistic perspective may seem more accurate than the
idealistic view. But the pessimistic perspective still probably misses the
mark. Had the Court affirmed the Fifth Circuit’s approval of qualified
immunity in Taylor and McCoy, one could argue that qualified
immunity had become functionally indistinguishable from absolute
immunity (as others have argued before 58). But the Court could have
simply declined to take any action on these cases in the first place. As
a formal matter, a “cert” denial does not signify support for the
underlying decision. 59 And as a functional matter, several of last

55. See SHAPIRO, GELLER, BISHOP, HARTNETT & HIMMELFARB, supra note 14, at 5-42
(stating that “the summary reconsideration order” does not seem to be “the functional equivalent
of a summary reversal order” but instead seems to instruct the lower court “to reconsider the
entire case in light of the intervening precedent—which may or may not compel a different
result”); see also id. at 4-21 through -22 & nn.36–37 (collecting cases).
56. McCoy v. Alamu, 842 F. App’x 933, 933 (5th Cir. 2021) (per curiam).
57. Indeed, in a recent skirmish over yet another Fifth Circuit case holding that qualified
immunity was warranted, Judge Willett argued that the court was not taking Taylor and McCoy
seriously enough. See Ramirez v. Guadarrama, 2 F.4th 506, 522–23 (5th Cir. 2021) (Willett, J.,
dissenting from the denial of reh’g en banc) (arguing that “while these quiet, ‘shadow docket’
actions may not portend a fundamental rethinking of qualified immunity, the Court seems
determined to dial back the doctrine’s harshest excesses” and that “the Court is warning us to
tread more carefully when reviewing obviously violative conduct”). In Ramirez, police officers
allegedly tased Gabriel Eduardo Olivas “[w]hile responding to a 911 call reporting that Olivas
was threatening to kill himself and burn down his family’s house” despite the officers knowing
that Olivas had doused himself in gasoline and despite another officer’s warning that tasing Olivas
would set him on fire. Ramirez v. Guadarrama, 844 F. App’x 710, 711–12 (5th Cir. 2021) (per
curiam). The panel explained what happened next: “Olivas was engulfed in flames. The house
burned down. Olivas died of his injuries several days later.” Id. at 711. The district court denied
the defendants’ motion to dismiss on qualified-immunity grounds; the panel reversed; and the full
Fifth Circuit denied rehearing en banc, prompting Judge Willett’s dissent. See Ramirez, 2 F.4th at
516–17 (Willett, J., dissenting from the denial of reh’g en banc).
58. See David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in
Prison, 93 NOTRE DAME L. REV. 2021, 2023 (2018) (claiming that “the present liability regime”
for prison officials “borders on de facto absolute immunity”).
59. See North Carolina v. N.C. State Conf. of NAACP, 137 S. Ct. 1399, 1400 (2017) (mem.)
(Roberts, C.J., respecting the denial of cert.) (“[I]t is important to recall our frequent admonition
that ‘[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the
case.’” (quoting United States v. Carver, 260 U.S. 482, 490 (1923))).
12 DUKE LAW JOURNAL ONLINE [Vol. 71:1

summer’s rejected petitions—including in Jessop—could have easily

exposed the Court to the same objection that failing to intervene
amounted to tacitly approving a transformation of qualified immunity
into absolute immunity, 60 but the Court still chose to remain silent. In
short, there are good reasons to read more into the Court’s
intervention in Taylor and McCoy than that the Justices felt obliged to
indicate that some space still exists between qualified and absolute
immunity.
Optimism seems to strike a better balance than idealism or
pessimism does here. Consider the Court’s composition, which
suggests a fair amount of cross-ideological support for restraining
qualified immunity in both Taylor and McCoy. While the complete
vote lineups are unclear, for Taylor, it seems safe to assume that every
member of the so-called liberal wing (meaning Justices Breyer,
Sotomayor, and Kagan) joined the principal opinion, which was
unsigned. 61 So to make a majority, at least two of the so-called
conservative Justices must have agreed with the Court’s course of
action. Justice Barrett, who had just been confirmed, did not
participate. 62 Justice Thomas (who has expressed skepticism about
qualified immunity on several occasions 63) dissented without
explaining why. 64 And Justice Alito concurred in the judgment, saying
the case was uncertworthy—but that if a conclusion was necessary, the
outcome was correct. 65 The votes of Chief Justice Roberts and Justices
Gorsuch and Kavanaugh are unknown, but all three may have agreed
with both the cert grant and the ultimate decision. For McCoy, there
were no noted dissents. 66 So the full Court may well have thought
Taylor supported vacating the Fifth Circuit’s judgment.

60. See George F. Will, Opinion, This Doctrine Has Nullified Accountability for Police. The
Supreme Court Can Rethink It., WASH. POST (May 13, 2020), https://www.washingtonpost.com/
opinions/will-the-supreme-court-rectify-its-qualified-immunity-mistake/2020/05/12/05659d0e-94
78-11ea-9f5e-56d8239bf9ad_story.html [https://perma.cc/T6AK-YE5C] (discussing these cases).
61. See Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment
48–50 (Mar. 4, 2021) (unpublished manuscript), https://papers.ssrn.com/abstract=3798024
[https://perma.cc/4SZS-WNMK] (discussing ideology-related implications of an empirical study
of appellate decisions about qualified immunity).
62. See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam).
63. See Hoggard v. Rhodes, 141 S. Ct. 2421, 2421–22 (2021) (mem.) (Thomas, J., respecting
the denial of cert.); Baxter v. Bracey, 140 S. Ct. 1862, 1862–65 (2020) (mem.) (Thomas, J.,
dissenting from the denial of cert.); Ziglar v. Abbasi, 137 S. Ct. 1843, 1869–72 (2017) (Thomas, J.,
concurring in part and concurring in the judgment).
64. Taylor, 141 S. Ct. at 54 (Thomas, J., dissenting).
65. Id. at 54–56 (Alito, J., concurring in the judgment).
66. McCoy v. Alamu, 141 S. Ct. 1364, 1364 (2021) (mem.).
2021] QUALIFIED IMMUNITY RETREAT 13

In light of all this, one could surmise that Taylor and McCoy
supply a limited response to the recent revolt against qualified
immunity. One could draw some assurance from the fact that a wide-
ranging coalition on the Court came together around this issue at this
time. And one could hope these cases presage more legitimacy-
enhancing consensus at this particular point in the nation’s history.
Taylor and McCoy, though, also demonstrate how the Court
frequently moves forward with the smallest of steps (when it moves
forward at all). Even in praising these decisions, qualified-immunity
critics have observed that the Court’s message is “quiet[]” and
“subtle,” a call audible only to “civil-rights lawyers and judges who are
listening.” 67 The judiciary’s adherence to precedent and other
procedural values often makes its tendency toward incrementalism
more right than wrong. But while larger—and louder—judge-made
alterations would be well justified in the qualified-immunity area, 68
there is little reason to expect to see them from One First Street any
time soon.

IV. TOMORROW
What, then, do Taylor and McCoy mean for qualified immunity
tomorrow? The above analysis indicates that the movement to reform
the doctrine has gathered so much steam that even the majority-
conservative Supreme Court recognizes the need for restraint, at least
at the margins. But the movement probably still faces a long road
within the judicial system, such that reform proponents should
continue focusing efforts on the more political branches of government
as well. 69 While the Court has offered shifting justifications for

67. Joanna Schwartz, The Supreme Court Is Giving Lower Courts a Subtle Hint To Rein In
Police Misconduct, ATLANTIC (Mar. 4, 2021), https://www.theatlantic.com/ideas/archive/2021/03/
the-supreme-courts-message-on-police-misconduct-is-changing/618193 [https://perma.cc/645G-
V76V]; see also Billy Binion, A Prison Guard Who Pepper-Sprayed an Inmate Without
Provocation Got Qualified Immunity. SCOTUS Disagreed., REASON (Feb. 23, 2021, 12:44 PM),
https://reason.com/2021/02/23/supreme-court-qualfied-immunity-prison-guard-5th-circuit-
mccoy-alamu [https://perma.cc/7M44-RK2X] (stating that McCoy was “subtle and went
unnoticed by just about every major news outlet”).
68. See Crocker, supra note 7, at 1458–60 (arguing that “rejecting Harlow-style qualified
immunity would seem well warranted,” that stare decisis “‘is not an inexorable command,’ as the
Court has made especially clear in the qualified-immunity context,” and that “there are good
reasons to think that completely eliminating qualified immunity would not cause the sky to fall”
(quoting Pearson v. Callahan, 555 U.S. 223, 233 (2009))).
69. See Schweikert, supra note 49 (“At this point, the only realistic prospect of actual
qualified immunity reform is from legislatures, not the Supreme Court.”); Ilya Somin, Supreme
Court Rejects Qualified Immunity Defense for the First Time in Years, VOLOKH CONSPIRACY
(Nov. 2, 2021, 10:21 PM), https://reason.com/volokh/2020/11/02/supreme-court-rejects-qualified-
14 DUKE LAW JOURNAL ONLINE [Vol. 71:1

qualified immunity, Justices have sometimes admitted that the doctrine

rests on policy preferences. 70 Justice Kennedy once, for instance, said
that the jurisprudence had “depart[ed] from history in the name of
public policy, reshaping immunity doctrines in light of those policy
considerations.” 71 Indeed, it is widely believed that qualified immunity
is susceptible to legislative modification. 72
Because the Court decides discrete issues in discrete cases,
moreover, our elected representatives are often best equipped to
recalibrate multiple legal lines in tandem. And reexamining qualified
immunity requires reexamining related realms as well—a point I detail
in a forthcoming article. 73 Qualified immunity did not grow up in a
vacuum and does not operate in one now. The doctrine’s rise and role
are intertwined with the Court’s commitment to yet another immunity
principle: sovereign immunity, which shields state and federal entities
from damages actions for constitutional claims. 74 Other areas of
constitutional enforcement—like rigid limitations on suits against
federal officers and onerous standards for holding municipalities
liable—bear close connections to sovereign immunity too. 75 And
employer indemnification of monetary costs supposedly carried by
individual officers, while underappreciated in constitutional-tort law,

immunity-defense-for-the-first-time-in-years [https://perma.cc/7DHH-J72Q] (“History shows

that successful movements to strengthen protection for constitutional rights usually combine
litigation with political action, as opposed to exclusively relying on one strategy to the exclusion
of the other. Hopefully, the cross-ideological movement to end qualified immunity can continue
to make progress in the same way.”).
70. Katherine Mims Crocker, A Scapegoat Theory of Bivens, 96 NOTRE DAME L. REV.
1943, 1963 (2021) (stating that “with respect to qualified immunity,” the Court “casts about for a
dizzying array of constitutional, statutory, and other justifications” but that “Justices have
occasionally been forthcoming about the subjective nature of their handiwork”).
71. Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring).
72. See, e.g., Roger Michalski & Stephen Rushin, Essay, Federal (De)funding of Local
Police, 110 GEO. L.J. ONLINE 54, 63 (2021) (stating that “Congress could overrule the qualified
immunity doctrine”); Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88 U. CHI. L. REV.
605, 677–78 (2021) (arguing that “[m]ounting evidence of qualified immunity’s failures offers
ample justification for Congress or the Supreme Court to abolish qualified immunity” and that
“[i]f Congress or the Supreme Court decides to amend qualified immunity instead of ending it,
the definition of ‘clearly established law’ should be at the top of the list for adjustment”); see also
William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 80–82 (2018) (exploring
arguments for and against congressional authority to change qualified-immunity doctrine).
73. See Katherine Mims Crocker, Qualified Immunity, Sovereign Immunity, and Systemic
Reform, 71 DUKE L.J. (forthcoming 2022) (manuscript at 5–7), https://papers.ssrn.com/
abstract=3796337 [https://perma.cc/G28U-HKZJ].
74. See id. at 16–25.
75. See id.
2021] QUALIFIED IMMUNITY RETREAT 15

plays an overwhelming part in constitutional-tort practice. 76 As I

explain in the forthcoming article, all this and more suggest that in
important ways, qualified immunity is just part of a much larger set of
challenges surrounding American constitutional accountability. 77
Congress should make defined but decisive changes in this area
of law. In doing so, however, Congress should account for the full
complexity of the constitutional-tort system rather than becoming
absorbed with the qualified-immunity component alone. My work
therefore proposes that legislators should contemplate both
eliminating qualified immunity and establishing entity liability under a
respondeat superior standard now for Fourth Amendment excessive-
force claims, which occupy the core of the public’s recent concerns, and
later (after learning from the initial experience) for other kinds of
constitutional violations. 78
Since the last presidential campaign, President Biden has
signaled support for “rein[ing] in” qualified immunity, especially
where “abuses of power” like police chokeholds are involved. 79
Democrats have been on board. 80 And while prospects in the Senate
have been declared dead, 81 the George Floyd Justice in Policing Act of
2021 as passed by the House would have (among other initiatives)
eliminated qualified immunity in the law-enforcement context. 82 Some
behind-the-scenes proposals for bipartisan congressional compromise,

76. See id. at 26–35; see generally James E. Pfander, Alexander A. Reinert & Joanna C.
Schwartz, The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 STAN. L.
REV. 561 (2020) (studying indemnification in the federal-officer context); Joanna C. Schwartz,
Police Indemnification, 89 N.Y.U. L. REV. 885 (2014) (studying indemnification in the state- and
local-officer context).
77. See generally Crocker, supra note 73.
78. See id. at 44–52; see also Katherine Mims Crocker, Reconsidering Section 1983’s
Nonabrogation of Sovereign Immunity, 73 FLA. L. REV. 523, 585–88 (2021).
79. The Reidout: Symone Sanders: Biden Believes ‘Qualified Immunity Needs To Be Reined
In,’ at 1:30–48 (MSNBC television broadcast Aug. 26, 2020), https://www.msnbc.com/the-
reidout/watch/symone-sanders-biden-believes-qualified-immunity-needs-to-be-reined-in-906988
21998 [https://perma.cc/BYT3-FNZ3].
80. Scott Shackford, Democratic Party Platform Calls for ‘Reining In’ Qualified Immunity.
Why Not Eliminate It?, REASON (Aug. 20, 2020, 2:05 PM), https://reason.com/2020/08/20/
democratic-party-platform-calls-for-reining-in-qualified-immunity-why-not-eliminate-it
[https://perma.cc/L69C-B3SL].
81. Marianne Levine & Nicholas Wu, Bipartisan Police Reform Talks Crumble, POLITICO
(Sept. 22, 2021, 4:08 PM), https://politi.co/3kv8mQE [https://perma.cc/ME3Z-LCCK].
82. See George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. § 102 (2021)
(as passed by House, Mar. 3, 2021), https://www.congress.gov/bill/117th-congress/house-bill/1280
[https://perma.cc/5ZMR-VGVF].
16 DUKE LAW JOURNAL ONLINE [Vol. 71:1

moreover, contemplated entity liability instead of or in addition to

individual liability for constitutional violations. 83
Other possible reforms include increasing transparency about
how constitutional-tort litigation actually works. The Cost of Police
Misconduct Act of 2021, for example, seeks to require law-
enforcement agencies “to report on an annual basis allegations of
misconduct by [their] officers and judgments or settlements related to
such misconduct, including settlements reached before a lawsuit has
been filed,” along with (among other information) “the source of
money used” to dispose of each judgment or settlement. 84 At least in
the law-enforcement context, shining this kind of sunlight on payment
realities should help illuminate faulty assumptions underlying much
constitutional-tort doctrine—including that individual officials are
often subject to substantial financial burdens and that formally shifting
liability onto their employers’ shoulders would run high risks of
crippling public fiscs. 85
The point, in short, is that the American people and our elected
representatives can and should think big when it comes to improving
how constitutional enforcement works: bigger than the courts and
bigger than qualified immunity. Regardless of what happens during the
current legislative session, congresspeople can and should continue
reconsidering this area of law. And they should do so from the ground
up.

83. See Seung Min Kim, Annie Linskey & Marianna Sotomayor, Chauvin Verdict Injects a
Fresh Jolt of Momentum into Police Overhaul Efforts, WASH. POST (Apr. 21, 2021, 7:58 PM),
https://www.washingtonpost.com/politics/chauvin-verdict-police-overhaul/2021/04/21/fa47d65c-
a2a0-11eb-85fc-06664ff4489d_story.html [https://perma.cc/9UPH-C5XF] (stating that Senator
Tim Scott said “one potential compromise is holding liable police departments, rather than
individual officers”); Anya Bidwell, Patrick Jaicomo & Nick Sibilla, Opinion, Hope for Reforming
Qualified Immunity? It May Lie in a Compromise Bill, a Leaked Draft Shows, USA TODAY (July
27, 2021, 4:27 PM), https://www.usatoday.com/story/opinion/2021/06/24/reform-qualified-
immunity-hold-federal-officers-accountable/7705663002 [https://perma.cc/5BLL-BUQC]
(describing and providing a link to draft legislation).
84. Press Release, Joint Economic Committee Democrats, Beyer, Kaine Introduce
Legislation to Address the Cost of Police Misconduct to Municipal Governments (Mar. 2, 2021),
https://www.jec.senate.gov/public/index.cfm/democrats/2021/3/beyer-kaine-introduce-
legislation-to-address-the-cost-of-police-misconduct-to-municipal-governments
[https://perma.cc/NAQ5-W3UR]; see Cost of Police Misconduct Act of 2021, S. 540, 117th Cong.
(2021), https://www.congress.gov/bill/117th-congress/senate-bill/540 [https://perma.cc/79E8-
42FJ]; Cost of Police Misconduct Act of 2021, H.R. 1481, 117th Cong. (2021),
https://www.congress.gov/bill/117th-congress/house-bill/1481 [https://perma.cc/2A9K-DXJT].
85. See Crocker, supra note 73, at 53–55.
2021] QUALIFIED IMMUNITY RETREAT 17

CONCLUSION
For today, Taylor and McCoy mark a reticent qualified-
immunity retreat, serving as modest but important moves toward
holding government actors accountable for unconstitutional conduct.
For tomorrow, qualified-immunity critics should keep endeavoring to
make the political process expand on the Supreme Court’s
characteristically measured course correction by addressing
constitutional-tort law’s infirmities in far more comprehensive ways.