RELIST WATCH

Another look at qualified immunity

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

After a two-week recess, the justices will meet on Thursday for their next conference (meeting one day earlier than usual for this time of year to avoid the Good Friday holiday).  They will have only one new relist to discuss.

Cope v. Cogdill is the latest in a long line of petitions urging the Supreme Court to revisit its jurisprudence under the “qualified immunity” doctrine, which grants law enforcement officials immunity from civil suits for violating constitutional rights if those rights were not “clearly established” at the time they acted.

After being arrested for a drug offense, pretrial detainee Derrek Monroe informed jail officials that he was suicidal and attempted to hang himself in his cell twice with bedding materials. Though Monroe was on suicide watch and a recent statewide memorandum had recommended phone cords in jail cells not exceed 12 inches because of the risk that longer cords would be used in suicides, jail officials then isolated Monroe in a new cell with a wall-mounted telephone with a 30-inch cord. When Monroe began to strangle himself with the cord, the lone jailer on duty stood outside the cell and watched, without calling 911 or attempting to render aid. The jailer called his supervisor, who arrived 10 minutes later, unwrapped the phone cord from Monroe’s neck, and called 911. But Monroe died at the hospital.

Monroe’s mother, Patsy Cope, filed suit, alleging that three jail officials acted with deliberate indifference by failing to render aid or call 911 as Monroe committed suicide in their presence, and by isolating Monroe in a cell with an obvious ligature even though they knew he was suicidal. The district judge determined that the jail officials were not entitled to qualified immunity. A divided panel of the U.S. Court of Appeals for the 5th Circuit reversed, concluding that the jailer who watched Monroe’s suicide without intervening was entitled to qualified immunity because, even though he “knew he should have” intervened, existing 5th Circuit precedent did not clearly establish the unreasonableness of his conduct. The panel further concluded that the jail officials who isolated Monroe with a long phone cord could not be held liable because, under 5th Circuit precedent, a phone cord is “not as obvious” a ligature as bedding.

Judge James Dennis dissented. He concluded that the jailer’s “glaring” inaction in the face of Monroe’s ongoing suicide was an “obvious” violation of his constitutional rights, and that “any reasonable officer should have realized” as much. Similarly, Dennis concluded that any reasonable officer should have understood that isolating a suicidal inmate in a cell with “an obvious potential ligature for suicide” — whether it be bedsheets or a phone cord — violated the Constitution. Dennis noted that the Supreme Court had only recently in Taylor v. Riojas summarily reversed the 5th Circuit in a qualified immunity case, holding that although there was no factually identical case on point, any reasonable correctional officer should have realized that keeping a prisoner in “deplorably unsanitary” conditions violated his rights against cruel and unusual punishment. By granting qualified immunity on the ground that no factually identical precedent involved phone cords rather than bedding, Dennis believed, the panel “repeat[ed] the very same analytical error [the 5th Circuit] made in Taylor and which the Supreme Court found necessary to correct.”

Cope now seeks Supreme Court review, supported by three amicus briefs. In her cert petition, she seeks fundamental reform of qualified immunity, which has come under attack in recent years. Likely mindful that the Supreme Court has denied past petitions seeking wholescale reform, she also presents narrower questions about the application of qualified immunity in her son’s case. We’ll have a better sense of the court’s plans when we see the order list Monday.

That’s all for this week. Until next time, stay safe! 

New Relist

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1 conference)

Returning Relists

Love v. Texas, 21-5050
Issues: (1) Whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Love’s rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Love’s rights under the Sixth and 14th Amendments to the United States Constitution.
(relisted after the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25 and April 1 conferences) 

Reed v. Goertz, 21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
(relisted after the Feb. 18, Feb. 25, March 4, March 18, March 25 and April 1 conferences)

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25 and April 1 conferences)