U.S. Supreme Court Fields Multiple Requests to Revise or Eliminate Qualified Immunity

May 19, 2020

Last Friday, the U.S. Supreme Court rejected three petitions in which one party asked the Court to reconsider the doctrine of qualified immunity. The Court put another ten petitions relating to the doctrine on hold until the next conference this Thursday. Qualified immunity is a doctrine that holds that government employees are immune from civil liability for constitutional violations unless they violate “clearly established” law. Defining “clearly established” is both tricky and often decisive, as the question of whether prior cases were similar enough to make the law “clearly established” gives space for creative lawyers on all sides to argue their point.

The doctrine most commonly arises in lawsuits against police officers. Municipalities point to the doctrine as crucial to their ability to defend against the many civil suits – of greatly varying degrees of merit – they face, and as a key counterweight to a plaintiff’s threat of a large attorney fee petition, which gives plaintiffs significant leverage in even flimsy cases. On the other hand, a coalition of traditional civil rights activists, libertarians, and the plaintiffs’ bar call the doctrine a free pass for officers who abuse their power in novel ways or an outright license for police abuse.

The US Supreme Court is asked to hear thousands of cases every year and chooses to hear only about seventy-five. But the Court rarely gets so many petitions addressing a single issue that is this controversial. As to what the Supreme Court will do, predicting that is even more speculative than in other matters. The increased uncertainty comes from the Janus-like contradiction in the Court’s recent opinions on the topic.

On the one hand, the Supreme Court has reversed the denial of qualified immunity to police officers at least eleven times in the last fifteen years. No other type of case comes close in frequency or in one-sidedness of outcome. More to the point, many of those cases have been unanimous. This includes D.C. v. Wesby in 2018 and White v. Pauly in 2017. But on the other hand, several Supreme Court justices, most notably the ideologically odd couple of Justice Thomas and Justice Sotomayor, have called for the Supreme Court to limit or abolish qualified immunity. So, too, have a number of academics. Recently, this debate entered popular media with the publication of a Reuters study claiming that in the last fifteen years, police officers’ win rate in excessive force cases has increased from 44% to 57% due to purported “special protection” of qualified immunity. Of note, the authors never addressed whether any other factor (e.g., a shift in the relative strength of the average case filed, or changes in the substantive law) contributed to this outcome.

Ultimately, the most one can say is that it would not be shocking if the Court refused or agreed to consider the issue. If it does “grant cert” on one or more cases, the first thing to note will be how the Court frames the question to be decided. It could choose to address a narrow application of the doctrine, or to ask if the doctrine should be revised, perhaps by addressing the definition of “clearly established law,” or, most broadly, whether it should be abolished. If the Court were to hear a qualified immunity case, it will receive a flood of amicus briefs and public attention otherwise seen only in cases addressing the most controversial social issues. Regardless, as attorneys focused on defending state and local governments, we at Hervas, Condon, & Bersani will be watching these developments closely in order to provide the best advice possible to our clients.

Leave a Reply