Yet despite these extraordinary conditions, Perry was given no meaningful opportunity to challenge his placement, and prison officials engaged in only the most perfunctory review of their decision. To begin with, Perry was never given a clear explanation of why he was being kept in solitary at all, and the rationales changed frequently and without explanation. Of the hundreds of administrative reviews of Perry’s solitary confinement, he was permitted to attend only two and was not authorized to speak at either. Those two hearings actually resulted in non-binding recommendations that he be removed from solitary, but both were overruled by non-appealable final decisions to place keep him there. The remaining several hundred reviews were conducted outside his presence and were so predetermined that the text memorializing the outcomes seldom varied. For example, nearly all of the 219 review “minutes notes” were simply cut-and-paste from one review to the next – to wit, the word “terminated” was incorrectly spelled as “trminated” 26 times in a row.
Perry brought a Section 1983 suit against the prison officials responsible for his placement, alleging a violation of his due process rights. In Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court clearly held that restrictive conditions of confinement implicate a liberty interest under the Due Process Clause when they “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” The conditions of Perry’s confinement were as or more extreme as the conditions in Wilkinson itself, and the prison officials provided Perry with none of the procedural protections that the Wilkinson Court held were necessary for such placement – notice of the factual basis for confinement, an opportunity to respond, and meaningful review.
Despite this clear authority, however, the district held that Perry’s rights were not “clearly established,” mainly because the judge perceived that there was “no consensus regarding what length of time in segregated confinement is required to implicate a liberty interest.” In other words, despite the obvious violation of Perry’s rights under applicable precedent, the defendants received qualified immunity simply because there was some uncertainty in the case law over the exact factual circumstances necessary to make out such a due process violation. The First Circuit affirmed the district court’s grant of qualified immunity, but then, over three years later, the First Circuit granted Perry’s petition for rehearing en banc.
Cato has therefore filed an amicus brief in support of Perry before the en banc First Circuit. Our brief summarizes the legal and historical arguments against qualified immunity in general, but also explains how the First Circuit should take heed of the Supreme Court’s recent decision in Taylor v. Riojas, 141 S. Ct. 52 (2020). Taylor reaffirmed that the fundamental question in qualified immunity cases is whether the defendant had “fair warning” that their conduct was unlawful, not whether there is a prior case with functionally identical facts. The brief also explains how aggressive application of qualified immunity has exacerbated a growing crisis of accountability in the criminal-justice system more generally, and why lower courts should therefore be especially vigilant against unwarranted expansions of the doctrine.
