In two fierce dissents in June, Justice Sonia Sotomayor blasted the Supreme Court for refusing to hear two Texas cases that granted qualified immunity to law enforcement officers. In the first, police officers were accused of igniting and killing a suicidal man drenched in gasoline, and in the second, jail staff were accused of failing to prevent—and in some ways facilitating—an incarcerated person’s death by suicide.
Created by the Supreme Court more than 40 years ago and made infamous following the murder of George Floyd, qualified immunity shields officers from being held liable for violating constitutional rights, unless a right is “clearly established.” To meet that bar, a right needs to be outlined in a previous court decision that has almost the exact same fact pattern (which is nearly impossible in practice). As a result, qualified immunity all too often robs victims and their families of their only chance at relief. It presents particular barriers to justice for people with mental illness—and indeed, blocks crucial reforms needed to improve the way the criminal justice system responds to mental health crises.
For people with mental illness, the impunity tied up in qualified immunity typically surfaces in two types of cases: excessive force by police and deliberate indifference from jailers and prison guards. Both scenarios featured in Sotomayor’s recent dissents.
The first case involved the tragic death of Gabriel Eduardo Olivas, who threatened to kill himself and burn down his house. When three officers from the Arlington Police Department arrived at his home, they found a clearly distraught Olivas in a bedroom, holding a gas can. According to court records, one of the officers, Caleb Elliott, warned his two colleagues, Jeremias Guadarrama and Ebony Jefferson: “If we tase him, he’s going to light on fire.”
The encounter quickly grew even graver, when Olivas—with the officers, his wife, and son looking on—doused himself with gasoline. Thinking he saw Olivas with a lighter, first Guadarrama, then Jefferson, fired their Tasers. Olivas instantly ignited. He would die four days later, with more than 85 percent of his body covered in burns.
Following his death, Olivas’ family sued the two police officers for excessive force, arguing their tasing violated Olivas’ Fourth Amendment rights. Although a federal district court initially sided with Olivas’ family, that decision was overturned in 2021 by the 5th Circuit Court of Appeals. “Neither officer’s conduct was unreasonable, nor was the force they employed clearly excessive,” the 5th Circuit declared, reasoning that the officers fired their Tasers “to prevent Olivas from lighting himself on fire.” The court argued that “the reasonableness of a government official’s use of force must be judged from the perspective of a reasonable official on the scene, not with the benefit of 20/20 hindsight.”
Of course, this handwaving ignores the fact that the officers had already been trained on the combustible consequences of Tasers and were warned at the scene by a fellow officer right before firing, court records document. As Sotomayor so scathingly put it in her dissent, “to prevent Olivas from lighting himself on fire and burning down the house, the officers tased Olivas just after they were warned that it would light him on fire.”
Although the circumstances surrounding Olivas’ killing were unique, his death was not an outlier. According to the Washington Post, more than one-fifth of all people shot and killed by police had a mental illness. The Post later identified at least 178 cases from 2019 to 2021 where police shot and killed the people they were called to help. Many of those shootings involved people deep in mental health crises or who had threatened suicide.
The Olivas case also captures how many federal judges are reflexively deferential to police officers. That’s especially true in the 5th Fifth Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas—and is the most likely to accept qualified immunity in excessive force cases, according to a Reuters investigation. The Fourth Amendment, after all, only protects against “unreasonable searches and seizures.” So when a judge upholds even the most outlandish behavior as “reasonable,” the victim has no grounds to sue, thanks to qualified immunity. In fact, one federal judge even called the Olivas case “textbook” for granting qualified immunity.
The second Sotomayor dissent featured another easily preventable tragedy. In September 2017, Derrek Monroe was arrested for a drug offense and booked at the Coleman County Jail in Texas. During intake, Monroe said he “wished I had a way” to kill himself. He also disclosed that he had been diagnosed with “some sort of schizophrenia” and tried to die by suicide just two weeks earlier. The jail promptly put him on suicide watch.
The very next day, Monroe suffered a seizure and was rushed to the hospital, where he was successfully treated. Within 17 minutes of his return to jail, however, Monroe began the first of two suicide attempts. He survived, but almost immediately tried again.
Only after Monroe’s second attempt did the jailer, Jessie Laws, intervene. According to court records, laws called Sheriff Leslie Cogdill, who was off-site. Upon arriving at the jail, the sheriff decided Monroe should be moved to the jail’s only single-occupancy cell.
This was a catastrophically bad decision. The sheriff had recently completed a mental health training, which specifically urged jailers not to isolate people at risk of suicide. Jail policy also required transferring people at risk of suicide to facilities “better equipped” to handle such emergencies.
That was not a high bar to meet. Due to budget constraints, the Coleman County Jail only had one jailer working nights and weekends. Yet jail policy also prevented a jailer from entering a cell without backup. In other words, the lone jailer wasn’t permitted to intervene and assist an incarcerated person experiencing a mental health crisis at night or on a Saturday or Sunday.
Worst of all, the jail cell Monroe was moved into had a phone with a 30-inch cord—a blatantly obvious hazard. In fact, just two years earlier, the Texas Commission on Jail Standards issued a memo that warned against having telephone cords more than a foot long.
Less than 24 hours after relocating Monroe, a predictable tragedy began. At 8:37 a.m., Monroe again attempted suicide. According to court records, Laws called both Sheriff Cogdill and Jail Administrator Mary Jo Brixey, but didn’t call emergency medical services; when later asked why he didn’t, he simply said, “Honestly, I don’t know.”
Over the next five minutes, court records document, Laws looked through the bars of Monroe’s cell multiple times, saw his still body, and did not enter the cell. Only when the jail administrator arrived—almost 10 minutes after the attempt began—did the jail staff finally enter the cell and call emergency medical services.
It took another seven minutes before the paramedics arrived on the scene. Monroe died the next day.
Following Monroe’s death, his mother filed a civil rights lawsuit, arguing the jail officials were deliberately indifferent to her son’s suicide risk. That indifference, she asserted, infringed on his 14th Amendment right to due process. A federal district court sided with her and denied qualified immunity to the jailers, noting the “evidence clearly demonstrates a high and obvious risk of suicide by maintaining a policy of housing suicidal inmates in a cell with a phone (and attached cord).”
For decades, suicide has been the most common single cause of death in local jails, with 355 people dying by suicide in jails in 2019, according to the Bureau of Justice Statistics. Given the disorienting shock of confinement and loss of autonomy, the first few days behind bars can be some of the most dangerous for people with underlying mental health conditions. Almost half of all local jail suicides happened with the first week of incarceration.
And the smaller the jail, the higher the risk. Local jails with fewer than 100 beds have a suicide rate nearly 10 times that of the national average. The Coleman County Jail, by comparison, had nine beds.
Moreover, a new database from the Institute for Justice (where I work) shows that in Texas, it’s long been “clearly established” that deputies, prison guards, and other law enforcement officers cannot act with deliberate indifference to people they’ve detained with “known suicidal tendencies” or who show a serious risk of self-harm.
Nevertheless, in Monroe’s case, the 5th Circuit cast aside years of case law and overturned the lower court’s ruling. In the 5th Circuit’s view, that precedent was irrelevant because it involved suicide attempts with bedding, not phone cords. According to the court, “the danger posed by the phone cord was not as obvious as the dangers posed by bedding.” And since none of those past cases specifically involved phone cords, the jailers were entitled to qualified immunity.
Because the Supreme Court didn’t hear the case, this is the precedent that stands—despite the fact, as Sotomayor wrote in her dissent, that the decisions to put a clearly suicidal man in a cell with a 30-inch cord and the failure to call 911 “violated the Constitution in a manner that would have been ‘obvious’ to any reasonable officer” and “clearly constituted deliberate indifference.”
The deaths of Gabriel Eduardo Olivas and Derrek Monroe are unfortunately emblematic of an unsettling lack of law enforcement accountability. With their officers legally immune, police departments and jails lack financial incentive to invest in proper de-escalation training or suicide prevention protocols, measures that could have stopped those tragedies. By refusing to take up the Olivas and Monroe cases, the Supreme Court decided it was OK with that.