Prince McCoy is an asthmatic prisoner in the custody of the Texas Department of Criminal Justice. On December 28, 2016, while McCoy was languishing in solitary confinement, a correctional officer viciously attacked him with a can of pepper spray, a substance so dangerous that it is banned for use in war. Why did Officer Alamu attack McCoy? For “no reason at all,” the Fifth Circuit found. Alamu, it seems, was frustrated that another prisoner had tossed water on him, and so took it out on our client. Despite finding that Alamu’s conduct violated the Eighth Amendment, the Fifth Circuit held that Alamu was entitled to qualified immunity because no prior case had held that it was unconstitutional to gratuitously assault a prisoner with pepper spray; prior cases had examined unprovoked assault by taser and fist. Judge Costa issued a blistering dissent pointing out the folly of the court’s weapon-by-weapon qualified immunity analysis.
We argued to the Supreme Court that the Fifth Circuit’s holding could not be reconciled with the “obvious violation” doctrine. The Supreme Court held in Hope v. Pelzer that qualified immunity was unavailable in the face of obviously unlawful conduct—in that case, tying a prisoner to a hitching post in the hot sun—even when no factually analogous prior precedent exists. In such rare cases, the egregious nature of the conduct itself provides all the notice of unlawfulness that is necessary to defeat qualified immunity. That doctrine was reaffirmed recently in Taylor v. Riojas, a case where the Court summarily reversed a Fifth Circuit decision granting qualified immunity. The Supreme Court’s decision in McCoy v. Alamu cements this essential gloss on qualified immunity and amounts to a clear directive to the lower courts: the absence of factually analogous case law is no defense to the indefensible.
The Supreme Court’s message is unmistakable: law enforcement officers should think twice before violating the Constitution because the shield of qualified immunity is showing some cracks.