On a November day in Wisconsin, when temperatures dropped as low as 25 degrees Fahrenheit, correctional officers put Antonio Smith into an unheated cell for nearly 24 hours with no clothing, bedding, or mattress, despite his requests to be moved to a warmer cell. The question in this case is whether the judge-made doctrine of qualified immunity protects the officers from having to answer for violating Mr. Smith’s constitutional right to freedom from cruel and unusual punishment.

Mr. Smith challenged the alleged violation of his constitutional rights under Section 1983, a Reconstruction-era law that allows people to challenge the deprivation of their constitutional rights by state and local officers. The United States District Court for the Eastern District of Wisconsin held that the correctional officers were immune from suit under the doctrine of qualified immunity. In its modern form, created by the courts in recent decades, “qualified immunity” protects officers from lawsuits unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” In practice, courts have interpreted the doctrine as shielding officers from accountability unless a plaintiff can point to a near-identical situation in which courts have found a constitutional violation. Here, for instance, in affirming the district court’s finding of immunity, the United States Court of Appeals for the Seventh Circuit acknowledged that it had previously held that confinement in a freezing cell was unconstitutional, but ruled that qualified immunity still applied because those situations were not factually identical.

Mr. Smith sought Supreme Court review, and in March 2026, the Constitutional Accountability Center filed an amicus brief supporting his request, explaining why qualified immunity should not block his suit.

First, modern qualified immunity is at odds with the text and history of Section 1983, which Congress passed to provide a remedy for state and local violations of the Constitution. That statute sweeps broadly, stating that “any person” who deprives another of their federal constitutional rights under color of state law “shall . . . be liable.” Nothing in the text of Section 1983 creates any special defenses or immunities for officers. And at the time Section 1983 was passed, government actors were strictly liable for legal violations that deprived people of their rights.

Second, modern qualified immunity is a judicial creation based expressly on policy considerations. In its original form, qualified immunity was said to derive from common law rules that the Supreme Court claimed Congress silently incorporated into Section 1983. Later, however, the Court invented, out of thin air, a rule that officials could violate people’s constitutional rights with impunity so long as the right at stake was not “clearly established.” In practice, this has meant that, no matter how outrageous an officer’s conduct, victims cannot prevail in court without identifying prior cases involving nearly identical facts. By making accountability for constitutional violations illusory in many circumstances, the “clearly established” test goes against the text and purpose of Section 1983. And the Supreme Court has frankly acknowledged that its new rule was designed to shield officers from litigation and monetary liability. In other words, through the doctrine of qualified immunity, the Court has substituted its own policy judgements for Congress’ judgment.

Because qualified immunity has no valid basis in the law, the Supreme Court should, at a minimum, reaffirm the limits on qualified immunity that many lower courts have disregarded. If nothing else, the Court should clarify that the “clearly established” standard does not require a factually identical preexisting case. As the Court has written before, even “novel” conduct can violate clearly established law when it is obviously unconstitutional—like keeping an inmate confined naked in a cell that is colder than a refrigerator.

In short, Congress enacted Section 1983 to allow victims of constitutional violations to obtain redress in federal court. Modern qualified immunity largely undoes that remedy, ignoring both the plain text of Section 1983 and Congress’s purpose in passing it. Having created that doctrine, the Supreme Court, at the very least, should ensure that lower courts do not erroneously expand it.