Bailey Barnes

@baileydbarnes

Associate Professor of Law at Mizzou | Civil Rights, Federal Courts, Constitutional Law, & Civil Procedure | Rural Appalachian | Views My Own

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Bailey Barnes@baileydbarnes· 10d

My article, Qualified Immunity’s Safety Valve: The Obvious Violation Exception, is forthcoming in the Fordham Law Review. The abstract is below, and I hope to post the draft to SSRN soon. I am happy to send it to anyone interested.

QUALIFIED IMMUNITY'S SAFETY VALVE:
THE OBVIOUS VIOLATION EXCEPTION
Antonio Smith spent twenty-three hours locked naked in a frigid prison cell. When he sued, the Seventh Circuit dismissed his claim based on qualified immunity because no prior case clearly established that Smith's treatment was unlawful.
By requiring plaintifts to produce comparator precedent to demonstrate that a right was clearly established, qualified immunity allows officers to evade liability if their misconduct is novel. However, the Supreme Court has twice stated that factually similar precedent is not always needed to overcome qualified immunity when faced with obvious violations of the Constitution. This is the obvious violation exception to qualified immunity (OVE).
This Article makes the case that the OVE is a necessary mechanism for ensuring constitutional accountability, that its expanded use is justified by existing qualified immunity doctrine, and that consistent application of the exception is critical to a functioning system of constitutional torts. The OVE serves as qualified immunity's safety valve by preventing individual government defendants from evading liability solely because of the novelty of their misconduct.
Despite its importance, lower courts have inconsistently analyzed the OVE. Building on my prior empirical study of how Lower courts use the OVE, this Article distills three hallmarks of obvious violations: a clear constitutional standard, a violation of obvious clarity as demonstrated by particularly egregious facts, and the absence of extraordinary factors counseling against invoking the OVE. This Article advocates for lower courts to more consistently use the OVE by looking for these hallmarks when litigants raise the exception. Doing so can disincentivize misconduct and promote constitutional development.
Assuming qualified immunity is here to stay, its worst examples should be mitigated. More consistent use of the OVE by lower courts can help achieve that goal.

Bailey Barnes@baileydbarnes· Apr 20

The Supreme Court continues its longstanding practice of summarily “deciding” qualified immunity cases on the shadow docket. The signal for lower courts is clear: deny qualified immunity, get summarily reversed.

(ORDER LIST: 608 U.S.)
MONDAY, APRIL 20, 2026
24-1099
25A872
CERTIORARI -- SUMMARY DISPOSITION
SMITH, KYLE, ET AL. V. SCOTT, ROCHELLE, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further
consideration in light of Zorn v. Linton, 607 U. S. _ (2026) (per curiam). Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the petition for a writ of certiorari.
ORDERS IN PENDING CASES
HOLLAND, DJAVON V. UNITED STATES

Bailey Barnes@baileydbarnes· Apr 2

My article, Factual Immunity, is forthcoming in the Minnesota Law Review. I argue that, alongside qualified immunity, some courts in constitutional tort suits employ what I call factual immunity by crediting officer testimony & discounting plaintiffs’ stories at summary judgment when QI is raised.

FACTUAL IMMUNITY

Bailey D. Barnes

111 MINNESOTA LAW REVIEW — (forthcoming 2026)

ABSTRACT

Qualified immunity protects government agents from suit and liability unless they deprive another of a clearly established right. This Article argues that constitutional tort litigation is also affected by a supplemental barrier for plaintiffs seeking relief: factual immunity. By making inherent credibility determinations and subtly weighing evidence in favor of government defendants on summary judgment, courts are protecting officials from trial despite the presence of genuine disputes of material fact in the record.

Relying on close analysis of recent appellate decisions, this Article shows how some judges credit officers' testimony, discount plaintiffs' evidence, and regard evidentiary ambiguities as reasons to grant, rather than deny, qualified immunity on summary judgment. Unlike qualified immunity, factual immunity is not grounded in the common law. It is a distortion of the summary judgment standard that reallocates fact-finding responsibility from juries to judges, depriving plaintiffs of accountability and weakening the constitutional tort system.

This Article makes three core contributions. First, it names and theorizes factual immunity, identifying how courts convert factual doubt into deference to defendants. Second, it acknowledges the institutional pressures that incentivize its use, including the Supreme Court's one-sided qualified immunity signaling and misapplications of Scott u.
Harris's blatant contradiction exception. Lastly, it describes how factual immunity magnifies the harms of qualified immunity by stunting constitutional development, undermining deterrence, and denying injured plaintiffs their constitutional right to a jury.

This Article concludes with proposals to restore the boundary between law and fact in constitutional tort litigation. Qualified immunity may be here to stay; factual immunity should not.

Bailey Barnes@baileydbarnes· Jan 27

Seems like a good case for invoking the obvious violation exception to qualified immunity, which I wrote about in 2024 in the Washington Law Review. Requiring parallel precedent here appears unnecessary to show notice of the state of the law.

https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5321&context=wlr

THE OBVIOUS VIOLATION EXCEPTION TO QUALIFIED IMMUNITY: AN EMPIRICAL STUDY

Bailey D. Barnes
Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one’s civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated an incarcerated individual’s clearly established rights, regardless of case law, where the allegations presented “extreme circumstances” and “egregious facts.” Thus, Taylor articulated an exception to the usual requirement for overcoming qualified immunity—showing a factually comparable precedent—in cases that raise extreme circumstances and egregious facts.

This Article offers the first empirical study encompassing all published lower court opinions referencing Taylor within the three years following its release. This inquiry includes a quantitative analysis of the cases applying Taylor to grant or deny immunity, as well as a
qualitative examination of the factual situations where the exception is most likely to succeed. Accordingly, this study suggests that the obvious violation exception is viable, albeit underused. Inferior courts are applying it in situations beyond the Eighth Amendment, and it is subject to a workable test. Therefore, Courts and litigants should employ it more frequently. Finally, the exception is consistent with Taylor and furthers the purpose of 42 U.S.C. § 1983, by preventing blatant civil rights abusers from evading consequences.

Bailey Barnes@baileydbarnes· Dec 17

As is typical in these cases, the officers’ conduct violated departmental policy, which has no bearing on whether the officers deprived a suspect of a constitutional right.

Bailey Barnes@baileydbarnes· Dec 17

The court held that it was reasonable to use lethal force even if Neil did not pose an immediate threat to others because fleeing motorists always pose an inherent threat to the public. This seems to imply that officers may always use moderate-to-lethal force to seize fleeing motorists.

Bailey Barnes@baileydbarnes· Dec 17

Last week, the Eighth Circuit affirmed a grant of qualified immunity to officers who killed Mikel Neil when they used a PIT maneuver to crash his vehicle during a high-speed chase. Officers were pursuing Neil because he failed to stop when they attempted to pull him over for running a red light.

Bailey Barnes@baileydbarnes· Sep 18

Finding my calm this morning by thinking about Angels Landing at Zion NP.

View of Zion National Park from Angels Landing.

Bailey Barnes@baileydbarnes· Sep 17

The Eight Circuit denied qualified immunity to officers who repeatedly used pressure points on an environmental protester locked in a “sleeping dragon device” and caused the protester to suffer Bell’s Palsy (facial paralysis), tinnitus, and emotional distress.

Bailey Barnes@baileydbarnes· Sep 15

Found the perfect stick & very proud of it

Australian Shepherd with way too long stick in his mouth while looking at camera

Bailey Barnes@baileydbarnes· Sep 12

The Third Circuit rejected qualified immunity for detectives who allegedly coached a false confession to prosecute an individual for murder (who was acquitted). Per the court, “It is always unconstitutional for the police to coerce confessions & manufacture evidence to prosecute a criminal suspect.”

Bailey Barnes@baileydbarnes· Sep 7

Qualified Immunity Nonsense—The Second Circuit held last week it was not clearly established that intentionally preventing prison toilets from flushing for up to three hours at a time was cruel & unusual, despite precedent that forcing prisoners to live among their waste was too degrading to permit.

Bailey Barnes@baileydbarnes· Sep 7

Enjoyed the renewed Mizzou-Kansas Border War. M-I-Z!