Today the Supreme Court declined to hear eight cases pertaining to qualified immunity, the legal doctrine that allows public officials to violate your rights with impunity if those rights have not yet been “clearly established” by a court precedent.
The doctrine has been the subject of a spate of reinvigorated critiques amid the death of George Floyd, the unarmed black man killed by former Minneapolis police officer Derek Chauvin. Conservatives have been hesitant to get on board, with Senate Republicans saying publicly that terminating the doctrine is off the table.
But at least one prominent conservative is open to considering its demise: Associate Justice Clarence Thomas, often characterized as the Supreme Court’s most right-wing member. In a lone dissent today, he expresses his desire to hear Baxter v. Bracey (2018), a case in which two cops received qualified immunity after siccing a police dog on a surrendering suspect as he sat on the ground with with his hands up.
“I have previously expressed my doubts about our qualified immunity jurisprudence,” writes Thomas. “Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”
The judge spoke to a point that qualified immunity critics have been making for some time: The framework was concocted by the Supreme Court in spite of court precedent. It’s a perfect example of legislating from the bench—something conservatives typically oppose.
The Civil Rights Act of 1871, otherwise known as Section 1983 of the U.S. Code, explicitly grants you the ability to sue public officials who trample on your constitutional rights. The high court tinkered with that idea in Pierson v. Ray (1967), carving out an exemption for officials who violated your rights in “good faith.” Thus, qualified immunity was born.
That doctrine ballooned to something much larger in Harlow v. Fitzgerald (1982), when the Supreme Court scrubbed the “good faith” exception in favor of the “clearly established” standard, a rule that has become almost impossible to satisfy. Now, public officials cannot be held liable for bad behavior if a near-identical situation has not been outlined and condemned in previous case law.
Though the original idea was to protect public servants from vacuous lawsuits, the practical effects have been alarming. As I wrote last week:
In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff’s deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child’s friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.
In other words, cops need the judiciary to tell them explicitly that stealing is wrong. The aforementioned police officers were thus shielded from legal accountability, leaving the plaintiffs with no recourse to seek damages for medical bills or stolen assets.
Qualified immunity hinges on the concept of reasonableness. In theory, this means “the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct.” But it’s transformed into a free pass for rogue cops who should know beyond any shadow of a doubt that their actions are morally indefensible.
Ironically, that has not been lost on the courts. In granting qualified immunity to the officers who allegedly took the $225,000, the U.S. Court of Appeals for the 9th Circuit wrote that “the City Officers ought to have recognized that the alleged theft was morally wrong.” Nonetheless, the officers “did not have clear notice that it violated the Fourth Amendment.”
The 9th Circuit expressed the same sentiment in giving qualified immunity to a cop in Los Angeles who, without warning, shot a 15-year-old boy on his way to school because his friend had a plastic airsoft gun replica. “A rational finder of fact” would conclude that the officer’s conduct “shocked the conscience and was unconstitutional under the Fourteenth Amendment,” the panel wrote. But “because no analogous case existed at the time of the shooting,” they concluded the officer was entitled to qualified immunity.
In addition to Baxter, the Supreme Court denied a slew of other qualified immunity cases today. Among them are Corbitt v. Vickers (2019), pertaining to the cop who shot a 10-year-old while aiming at the family’s dog, all while in pursuit of an unarmed suspect who had no relation to the boy or his pet. They also turned away West v. Winfield (2019), which saw Shaniz West’s home destroyed after officers threw a barrage of tear gas grenades while attempting to arrest her former boyfriend. The lower courts ruled that the cops involved were protected by qualified immunity. Unfortunately for the victims, it appears those decisions will stand.