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When the Louisiana Department of Public Safety illegally detained inmate Percy Taylor for more than a year past his release date, Taylor sued for the violation of his constitutional rights. A federal court dismissed his suit under qualified immunity based on a unique theory: The court agreed that Taylor had a clearly established right to not be wrongfully imprisoned, but held that he did not have a clearly established specific remedy for that violation. But that gets qualified immunity wrong in at least two ways. First, as an initial matter, the entire doctrine of qualified immunity lacks statutory and historical foundations, as recent scholarship on the history of Section 1983 proves. Second, even assuming qualified immunity does apply, it does not shield Louisiana prison officials here.

On August 8, 2023, FIREjoined a brief with the Cato Institute, Alliance Defending Freedom, and Texas Public Policy Foundation explaining the historically flawed basis for qualified immunity against Section 1983 lawsuits, and asking the Fifth Circuit to reinstate Taylor’s suit.