The Supreme Court declined to disturb a Seventh Circuit ruling that gave qualified immunity to Wisconsin jail officers accused of leaving a naked incarcerated man in an unheated cell for 23 hours, despite the appeals court’s own finding that the officers violated the Eighth Amendment.
Justice Sonia Sotomayor dissented from the Court’s refusal to act. In her dissent, she accused the Court of intervening readily when lower courts deny qualified immunity to government officials, while standing down when lower courts grant it in cases involving alleged constitutional violations.
The case involved Antonio Smith, who was on the 46th day of a hunger strike at a Green Bay, Wisconsin jail when staff tried to conduct a wellness check. According to Sotomayor’s account, jail staff responded to Smith’s refusal by pepper-spraying him, ordering him to remove his clothes, taking him to the health unit, and then placing him in a control cell with only a small towel.
The cell was unheated and had no furniture, bedding, mattress, or clothing, according to uncontested testimony cited by Sotomayor. Temperatures ranged from 25 to 57 degrees Fahrenheit during Smith’s confinement. Smith later said he stayed standing for much of the 23-hour period because sitting, lying down, or sleeping was too painful in the cold.
Sotomayor wrote that officer Van Lanen told Smith he could request a shower and that he would return to discuss clothing, but did not come back. Smith later asked Lieutenant Timothy Retzlaff for clothes, bedding, a mattress, and a warmer cell. Retzlaff said he would check with Van Lanen, according to the dissent. Hours passed without either officer returning, and another officer later told Smith he could receive a smock if he agreed to future wellness checks, according to Sotomayor.
The Seventh Circuit held that the officers’ conduct violated Smith’s Eighth Amendment protection against cruel and unusual punishment. It still granted qualified immunity because, in the panel’s view, the circuit had not previously ruled on sufficiently similar facts involving an inmate held without clothing or warmth in a cell between 25 and 57 degrees for 23 hours.
That is the doctrine doing what it does. Qualified immunity often turns on whether a prior case placed the illegality of the conduct beyond debate. Courts can find bad conduct unconstitutional, then still block damages if no earlier case matches closely enough. The more courts avoid reaching the merits, the thinner the precedent gets. Plaintiffs then lose because the precedent is thin. Elegant, if your goal is a liability escape hatch.
Sotomayor said the Seventh Circuit already had relevant precedent. She cited Gillis v. Litscher, where the appeals court held that a jury could find an Eighth Amendment violation after officials left a prisoner naked in a cool-air cell for five days to force rule compliance. She also cited Del Raine v. Williford, involving a strip search in a cell during wind chills of 40 to 50 degrees below zero, and other Seventh Circuit rulings about officials failing to address cold conditions.
Her broader complaint was institutional. Sotomayor pointed to McCarthy v. Hernandez, Zorn v. Linton, and Smith v. Scott as recent examples in which the Supreme Court summarily reversed or vacated lower-court rulings that denied qualified immunity. If those cases warranted fast correction, she wrote, Smith’s case did too.
Sotomayor said the Court’s pattern sends a message that it is more willing to protect government officials from liability than to vindicate constitutional rights. The practical result for Smith is blunt: the appeals court said his rights were violated, and the officers still avoid the lawsuit under qualified immunity.
This story draws on original reporting from Techdirt.
