Jay Schweikert is a policy analyst with the Cato Institute’s Project on Criminal Justice. His research and advocacy focuses on accountability for prosecutors and law enforcement, plea bargaining, Sixth Amendment trial rights, and the provision and structuring of indigent defense. Before joining Cato, Jay spent four years doing civil and criminal litigation at Williams & Connolly LLP. He holds a J.D. from Harvard Law School, where he was an Articles Editor for the Harvard Law Review, and chaired the Harvard Federalist Society’s student colloquium program. Following law school, Jay clerked for Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. He holds a B.A. in political science and economics from Yale University.

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

I fear I may have become trapped in a time loop, in which every week I am doomed to write the same blog post about how the Supreme Court has delayed consideration of its qualified immunity docket. Back in April, I noted that the Court had scheduled thirteen different qualified immunity cases for its May 15th conference, including three cases explicitly calling for the Court to reconsider the doctrine entirely. Many of these petitions had already been fully briefed and ready for consideration since last October. But the Court then rescheduled the bulk of those cases again, and again, and again.

This morning, the Court kicked the can down the road once more. There were eight different qualified immunity cert petitions that went to conference last Thursday, but none of those petitions were either granted or denied in this morning’s orders. We expect that these petitions will soon be relisted for the Court’s conference this Thursday, June 4th, which means we could get a decision in these cases as soon as Monday, June 8th.

While it’s obviously impossible to know for sure what is motivating the Justices’ continued delay in these cases, I expect that the death of George Floyd, and the continuing outrage and chaos his death has provoked, are weighing heavily on their minds. As my colleague Clark Neily discussed last week, the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while that culture has many complex causes, one of the most significant is qualified immunity. As I noted over the weekend, reporters and commentators of all stripes have recognized the profound connection between George Floyd’s death and the Supreme Court’s lawless rewriting of our primary civil rights statute.

The Justices have a critical opportunity now to take the first steps toward correcting the legal and moral perversities of qualified immunity. If they do so, perhaps it will effect some small measure of redemption for the tragic death of George Floyd, and so many like him. If not, it is difficult to overstate how severe our crisis of confidence in law enforcement will become.

In the wake of George Floyd’s death, all eyes turn to SCOTUS

This past Monday, George Floyd was killed by a police officer, Derek Chauvin, who pressed his knee against Mr. Floyd’s neck for over eight minutes, while Mr. Floyd and onlookers alike begged for the officer to stop and let Mr. Floyd breathe. George Floyd’s death was no aberrant act of random violence. Rather, as my colleague Clark Neily wrote earlier this week, Mr. Floyd was “the latest victim of our near‐​zero‐​accountability policy for law enforcement.” As such, I expect his death has been weighed with a special kind of gravity on One First Street, where the Justices of the Supreme Court deliberated this week on whether to reconsider qualified immunity—an atextual, ahistorical judicial doctrine that shields public officials from liability, even when they break the law.

Over the last several days, I have observed with grim satisfaction that reporters and commentators of all stripes have appropriately recognized the direct connection between qualified immunity and the senseless murder of George Floyd. For example:

  • The New York Times pulls no punches, running an editorial on the subject of “How the Supreme Court Lets Cops Get Away With Murder.” They correctly explain that, while there are a variety of reasons police officers are rarely held to account for their misconduct, “it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity.”
  • Fox News also reports that “[t]he death of George Floyd at the hands of a Minneapolis police officer has done more than just trigger massive protests and riots—it’s brought a simmering debate on ‘qualified immunity’ for government officials to a veritable boil.” The Fox piece describes how qualified immunity has “come under fire even from judges on President Trump’s Supreme Court shortlist, like Fifth Circuit Court of Appeals Judge Don Willett,” who wrote in a 2018 concurring opinion that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable.”
  • At USA Today, Richard Wolf describes how “Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review.” He notes that “[t]he brutal death of George Floyd at the hands of Minneapolis police has re‐​energized a national debate over misconduct by law enforcement officials that the Supreme Court may be poised to enter.”
  • Slate’s Mark Joseph Stern writes that “George Floyd’s killing by Minneapolis police officers shows the damage the court has wrought” through the doctrine of qualified immunity. He further explains how “[a]t their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.”
  • At Reason, C.J. Ciaramella writes that “The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s,” and explains that the Court “could announce as early as Monday that it’s taking up several cases involving the doctrine.”

Suffice to say, when both the New York Times and Fox News have basically the same take on such a charged issue, it’s a good sign they’re onto something. On Monday morning, we’ll learn whether the Supreme Court intends to take the first step toward correcting the legal and moral perversities of qualified immunity. If the Court declines to address this issue now, it will not only be a shameful black mark on the Court’s reputation—it will also exacerbate what is already a severe crisis of confidence in law enforcement across the nation.

SCOTUS Continues To Delay Qualified Immunity Cert Petitions

As I discussed last week, the Supreme Court was scheduled to consider ten different qualified immunity cert petitions at its May 21st conference, including three petitions calling for qualified immunity to be reconsidered entirely. Thursday came and went without further reschedulings, and I was expecting that we would learn about the results from this conference when the Court issued orders today. (I discussed these developments — and the problems with qualified immunity generally — with Jordan Rubin and Kimberly Robinson on this week’s “Cases and Controversies” podcast.)

But on Friday, the Court pushed back the question once again. In all ten of the remaining qualified immunity cases, the Court redistributed the petitions for the May 28th conference. Just as a procedural matter, this is somewhat unusual. It’s not uncommon for the Court to “relist” important petitions before deciding whether to grant or deny them, but “relist” decisions are generally announced in the Court’s set of orders following each of their conferences (i.e., the orders we were expecting next Tuesday). But here, the Court announced the redistribution of the petitions immediately, rather than waiting for Tuesday. I honestly have no idea what that indicates, and it’s also possible that things are just working differently now that the Justices are doing all their work remotely.

Nevertheless, the bottom line is that the waiting game continues. As of now, ten qualified immunity petitions are scheduled for consideration at the May 28th conference, which means that we would expect to learn about a possible cert grant on Monday, June 1st. Further delays are definitely possible at this point, but the Justices’ attention on this issue remains undeniable. Stay tuned! 

Qualified Immunity Is Back For This Week’s SCOTUS Conference

For the last few weeks, I’ve been detailing the ongoing developments in the Supreme Court’s qualified immunity docket. About three weeks ago, I described how the Court had scheduled thirteen different qualified immunity petitions for its May 15th conference, including several petitions calling for qualified immunity to be reconsidered entirely. But then last week, I noted that the Court had unexpectedly “rescheduled” ten out of those thirteen cases, leaving only three for consideration on May 15th. Well, today the Court issued orders from last week’s conference, and there are two major developments.

First, the bad news: The Court denied cert in the three cases that it considered last week — Kelsay v. ErnstJessop v. City of Fresno, and Clarkston v. White — without comment from any of the Justices. This is disappointing, because the Kelsay and Jessop cases in particular involved especially egregious applications of qualified immunity that were crying out for correction, if not summary reversal. In Kelsay, the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” And in Jessop, the Ninth Circuit granted immunity to police officers who were alleged to have stolen $225,000 in cash and rare coins while executing a search warrant, just for their personal enrichment. By denying cert in these cases, the Supreme Court ensured that these victims would be left without redress for their injuries, and that the police who committed such flagrant misconduct will avoid any liability for their misdeeds. 

Second, the good news: The Court also rescheduled the remaining ten qualified immunity petitions for consideration at its conference this Thursday, May 21st. This means that, barring additional rescheduling, we should get orders on these petitions on Tuesday, May 26th (the day after Memorial Day). Most notably, the cases set for consideration this week include Baxter v. BraceyZadeh v. Robinson, and Corbitt v. Vickers, which are the three petitions explicitly calling for qualified immunity to be reconsidered entirely. Thus, the fact that the Justices denied the three petitions today doesn’t necessarily mean they aren’t still interested in revisiting qualified immunity. If anything, the fact that the Court rescheduled the biggest three cases may indicate that the Justices are more interested in addressing this larger question, rather than taking a narrower approach.

Ultimately, it’s hard to say with confidence exactly why the Court decided to approach all of these petitions in the way that it did. I still don’t have a great explanation for why the Court chose to carve out KelsayJessop, and Clarkston for earlier resolution than the other cases. And given the number of unexpected reschedulings we’ve already seen, it’s entirely possible the Court decides to push back some or all of these cases yet again. But for now, it looks like this Thursday is the day the Justices will finally confront the question of whether qualified immunity itself should be reconsidered — and next Tuesday is the day we’ll learn what they decided.

SCOTUS Once Again Reschedules (Most Of) Its Qualified Immunity Cases

As Yogi Berra famously said, “it’s tough to make predictions, especially about qualified immunity.” Or something like that. Two weeks ago, I discussed how the Supreme Court had scheduled thirteen different cert petitions for its May 15th conference. Several of these petitions had been fully briefed and ready for resolution since last October, so it looked like the Court was finally gearing up to confront the fundamental question of whether qualified immunity should be reconsidered entirely.

George Will further discussed that development this week, describing how qualified immunity “has essentially nullified accountability for law enforcement and other government officers” and urging the Supreme Court to “rethink the mistakes it made regarding qualified immunity.” He also noted how the Cato‐​led cross‐​ideological amicus briefs filed in several of the major cases “represent[] an astonishing ideological diversity” and “have helped to bring qualified immunity’s consequences to the attention of the court.”

But it looks like the Court may be preparing to punt on this question yet again. In the last few days, the Court has rescheduled ten of the thirteen cases that were originally set to go to conference today. (“Rescheduled” here is a bit of a misnomer, because the Court hasn’t yet indicated when they’ll actually consider these petitions — it’s more like an indefinite postponement.) The cases that got rescheduled include all three petitions that explicitly ask the Court to reconsider qualified immunity, and in which Cato organized or filed cross‐​ideological amicus briefs — those three cases are Baxter v. BraceyZadeh v. Robinson, and Corbitt v. Vickers. Thus, it looks like we’ll have to wait a little longer to learn whether the Court intends to take up this question.

Curiously, however, the Court did not reschedule the cert petitions in Kelsay v. ErnstJessop v. City of Fresno, or Clarkston v. White, which means those petitions will go to conference today. It’s honestly hard to say why the Court would want to make a decision about the petitions in these three cases, but not any of the others. The petitions in Kelsay and Jessop both raise important questions about clarifying and reining in the worst excesses of the “clearly established law” standard, but then, so do the petitions in some of the other cases that got rescheduled. It’s possible that the Court wants to start with some of the narrower QI questions, short of reconsidering the doctrine entirely, and prefers one or more of these three cases as vehicles. Or it’s possible that, for whatever reason, the Court is confident about denying cert in these three cases, but wants to continue the other cases at a future date. It’s also possible that there’s no real rhyme or reason to this decision, and the Court might simply “relist” one or more of these three cases, which would have the same practical effect going forward as rescheduling them.

In short, we really can’t say with confidence why the Court made the scheduling decisions it did this week, nor is it at all clear what will come out of next Monday’s orders with respect to these three cases. But two things do remain certain: first, the Court is paying very close attention to its qualified immunity docket, and second, qualified immunity is desperately in need of reconsideration.

Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity

For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights. The most immediate practical goal of this campaign has been to convince the Supreme Court to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright. And over the last seven months, I’ve written several times about how the Court has indicated that it’s preparing to consider several qualified immunity cases, given the manner in which it has repeatedly rescheduled several cert petitions that have been fully briefed and ready for resolution since October of last year. My hypothesis at the time was that the Supreme Court was delaying resolution of these petitions so that it could consider them along with several other high‐​profile cases that also raised the same underlying question of whether qualified immunity should be reconsidered.

Now it would seem that prediction has been vindicated. Just today, the Supreme Court distributed thirteen* different qualified immunity cert petitions for its conference of May 15, 2020. This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.

Here’s the complete list of the thirteen different petitions that have been distributed for the May 15th conference. In most of these cases, Cato filed an amicus brief in support of the petition, and in many of them, we either helped coordinate or took the lead on a “cross‐​ideological brief,” on behalf of a diverse alliance of organizations opposed to qualified immunity.

  • Baxter v. Bracey. In this case, Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of a cross‐​ideological brief. This case was originally set to be considered all the way back on October 1, 2019, but it has been rescheduled five times since then. Now, it looks like the Court is finally prepared to resolve Mr. Baxter’s petition.
  • Brennan v. DawsonIn this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
  • Zadeh v. Robinson. In this case, the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.
  • Corbitt v. VickersThis is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both Zadeh and Corbitt are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The MacArthur Justice Center filed a cert petition on November 26, 2019. While the petition doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
  • West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear‐​gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given. On January 16, 2020, the Institute for Justice filed a cert petition asking the Court to clarify and limit the scope of qualified immunity, and Cato filed a brief in support of this petition.
  • Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.
  • Mason v. FaulIn this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion‐​to‐​dismiss or summary‐​judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity. The cert petition was filed on November 14, 2019, and it asks the Court to address the “confusion and uncertainty” in qualified immunity case law.
  • Cooper v. Flaig. In this case, the Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental‐​health episode. The cert petition was filed on February 5, 2020, and it explicitly asks whether the Court should “eliminate or significantly revise the judicially created doctrine of qualified immunity.”
  • Anderson v. City of Minneapolis. In this case, the Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19‐​year‐​old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life‐​saving medical assistance. The cert petition was filed on November 18, 2019, and it asks the Court to clarify the standards for determining “clearly established law,” especially in the context of the state‐​created danger doctrine.
  • Clarkston v. White. In this case, the Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school’s CEO about disciplinary practices. The cert petition was filed on March 3, 2020, and it asks the Court to clarify that qualified immunity should not apply when a constitutional right is clearly established and the only uncertainty in the case law is whether a particular individual can be sued for its violation.
  • Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17‐​year‐​old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, which I discussed here. On December 9, 2019, the officer filed a cert petition, asking the Court to hold that his shooting of the teenage boy did not violate clearly established law.
  • Davis v. Ermold. The one other case in which the lower court denied immunity involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same‐​sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. Those couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity to Davis, finding that the plaintiffs had sufficiently alleged that she violated their clearly established constitutional rights. Davis’s cert petition was filed on January 22, 2020. 

The fact that the Court sent all thirteen of these cases to conference on the same day — especially after repeatedly rescheduling many of them — is unmistakable evidence that the Justices are looking closely at the fundamental question of whether qualified immunity itself needs to be reconsidered. This is a question that Justice Thomas urged the Court to take up all the way back in 2017, and which Cato has been vigorously pushing since it launched its qualified campaign back in March of 2018. It is far past time for the Supreme Court to reconsider qualified immunity, and in less than three weeks, we’ll finally know whether the Court is prepared to take up that question.

Supreme Court may be preparing to consider several major cases on qualified immunity

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge-made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross-ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op-ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.

Why is the Court repeatedly rescheduling Baxter? It’s impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in Zadeh v. Robinson and Corbitt v. VickersZadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real-world functioning of modern immunity practice.” And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes — co-chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery — who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th — just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid-November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.

Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a promising development, especially in light of the Court’s disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I suspect that we’ll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.

Eleventh Circuit grants immunity to officer who shot a child lying on the ground, while trying to shoot a harmless dog

The Eleventh Circuit’s decision in Corbitt v. Vickers, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.

The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.

But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground only 18 inches away. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.

Corbitt, individually and on behalf of her child, filed a lawsuit against Vickers under Section 1983, the text of which guarantees that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” Vickers filed a motion to dismiss, but the district court held that he wasn’t entitled to qualified immunity, emphasizing that the facts as alleged in the complaint indicated that there was no conceivable safety threat or any need to discharge his weapon at the family’s dog.

But in a split decision, the Eleventh Circuit panel reversed, holding that Vickers was entitled to qualified immunity as a matter of law. Judge R. Lanier Anderson, for the majority, said that there was no prior case law involving the “unique facts of this case,” in which a child was accidentally shot while the officer was intending to shoot someone (or something) else. Although the majority dutifully recited Supreme Court precedent purporting to say that overcoming qualified immunity does not require that “the very action in question has previously been held unlawful,” it is clear from the rest of the opinion that the majority was, indeed, requiring this level of specificity:

No case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.

Given the shockingly reckless nature of Vickers’ actions here, it is of course unsurprising that no prior case involving precisely this sort of misconduct. The majority’s analysis vindicates the stinging criticism of Fifth Circuit Judge Don Willett, who recently stated in another case that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

To add insult to injury, the majority here took the common but cowardly option of declining even to decide the constitutional question, ensuring that the law will not be “clearly established” going forward either. In other words, Vickers could commit the exact same sort of misconduct tomorrow and receive qualified immunity yet again. Despite the majority’s reluctant finger-wagging that Vickers “could have acted more carefully” (!), the practical bottom line is the federal judiciary green-lighting some of the most reckless police misconduct imaginable.

The case did provoke a powerful dissent from Judge Charles Wilson, who appropriately began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.” The dissent also took the majority to task for dismissing the “conclusory” allegation that the family pet was non-threatening. To the contrary, the complaint specifically alleged that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired. Of course, if the case had actually been permitted to go to a jury, Vickers would have had the opportunity to dispute these allegations. But by dismissing the case outright on the basis of qualified immunity, the majority short-circuited the exact mechanism — a public jury trial — that is supposed to ensure accountability for public officials.

The result in Corbitt is especially atrocious, but far from unique. As David French has already noted, this case it is not simply an unfortunate outlier, but rather an illustrative example of why “it’s time to rethink qualified immunity entirely.” The doctrine has no legal basis in either the text or history of Section 1983, severely undermines official accountability, and routinely results in morally indefensible decisions. I hope the Supreme Court is listening.

Cato Files Brief Challenging Qualified Immunity for Warrantless Strip Search of 4-Year-Old

For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!

The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 suit against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in Safford Unified School District No. 1 v. Redding. In Safford, the Court even said it was seeking “to make it clear” that an intrusive strip search of a child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in Safford.

The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without a remedy because of a fictitious doctrine, with no grounding in the text or history of Section 1983. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a seemingly on-point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity.

I.B. and her mother are now represented by Scott Keller, chair of Supreme Court practice at Baker Botts, and they’ve filed a powerful cert petition, asking the Supreme Court both to resolve the Fourth Amendment questions at issue here, but also to reconsider the doctrine of qualified immunity itself. Today, Cato filed an amicus brief in support of that petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of stare decisis. Specifically, we explain how (1) the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place; (2) that the Supreme Court itself has already made major modifications to qualified immunity over the years, and therefore should have no qualms about reconsidering the doctrine now (but this time to bring it line with the statute Congress actually passed); and (3) that allowing the status quo to continue severely undermines public accountability and effectively subjects citizens to ongoing constitutional violations.

Ours is far from the only brief being filed today, however – we’ve also helped coordinate the drafting and filing of two additional amicus briefs. The first is on behalf of a group of leading qualified immunity scholars, who discuss the academic consensus that the Court’s qualified immunity doctrine is in serious need of correction. The second is on behalf of a diverse array of groups from across the ideological and professional spectrum, who nevertheless all share a common interest in ensuring that government officials are held accountable for their misconduct. This brief was joined by all of the following groups: the ACLU, Alliance Defending Freedom, American Association for Justice, Americans for Prosperity, Due Process Institute, Institute for Justice, Law Enforcement Action Partnership, MacArthur Justice Center, NAACP Legal Defense Fund, National Association of Criminal Defense Lawyers, Public Justice, R Street Institute, Reason, and the Second Amendment Foundation. Take a moment and consider just how egregiously misguided a Supreme Court doctrine has to be to unite all of these organizations in opposition, on a single brief. (Note also that several other groups have filed additional amicus briefs asking the Court to take the case, although we weren’t specifically involved with those.)

All in all, this case represents one of the most promising opportunities in the ongoing fight against qualified immunity. It highlights the sort of gross injustice that the doctrine regularly permits, demonstrates just how much cross-ideological consensus there is on this issue, and presents the Court with an ideal vehicle for restoring Section 1983 to its proper stature. We can only hope the Court answers the call.

Yet another federal judge tears into qualified immunity, citing Cato Institute & Will Baude

The legal blogosphere has been abuzz with Judge Willett’s recent “dubitante” concurrence in Zadeh v. Robinson, in which the Twitter superstar and Supreme Court shortlister urged reconsideration of the judge-made doctrine of qualified immunity. Yet just one day before that decision was released, another federal judge — James O. Browning, in the District of New Mexico — issued his own blistering criticism of the doctrine, as a four-paragraph footnote to his order in Manzanares v. Roosevelt County Adult Detention Center, 2018 U.S. Dist. LEXIS 147840 (D. N.M. Aug. 30, 2018). To my knowledge, however, that decision has so far flown entirely under the radar, notwithstanding that cross-ideological opposition to qualified immunity is steadily growing.

The Manzanares case involved a municipal employee’s Section 1983 claims against state prison officials, who paired him with a violent inmate to assist in his maintenance work at the prison; these prison officials, in turn, claimed qualified immunity. The plaintiff’s claims here weren’t very strong on the merits, and the district court ended up holding that there wasn’t any due process violation in the first place.

What makes this case extraordinary, however, is Judge Browning’s general discussion of qualified immunity. After he sets forth the relevant legal precedent, he drops a footnote (Footnote 10, if you’re reading along), which consists of a comprehensive, four-paragraph criticism of the doctrine. Not only does he cite Will Baude’s game-changing article on the (lack of) legal justifications for qualified immunity, but he also quotes extensively from Cato’s amicus brief in Pauly v. White. Footnote 10 is worth reading in its entirety, but here’s a cleaned up excerpt of the most important points (with emphases added):

[T]he Supreme Court has sent unwritten signals to the lower courts that a factually identical or a highly similar factual case is required for the law to be clearly established, and the Tenth Circuit is now sending those unwritten signals to the district courts . . . .

Factually identical or highly similar factual cases are not, however, the way the real world works. Cases differ. Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. . . . The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. . . . It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?” . . .

The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy. As the Cato Institute noted in a recent amicus brief, “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.” Pauly v. White, No. 17-1078 Brief of the Cato Institute as Amicus Curiae Supporting Petitioners at 2, (U.S. Supreme Court, filed Mar. 2, 2018)()(“Cato Brief”). “The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law of 1871 did not include any across-the-board defense for all public officials.” Cato Brief at 2. “With limited exceptions, the baseline assumption at the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful justification.” Cato Brief at 2. See generally William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018)(arguing that the Supreme Court’s justifications for qualified immunity are incorrect).

Moreover, in a day when police shootings and excessive force cases are in the news, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. . . .

I could scarcely have written a more powerful critique of qualified immunity myself.

Also, for those who care about such things, Judge Browning was appointed by George W. Bush, in 2003. The ideological and jurisprudential breadth of the many judges who have criticized qualified immunity (which now include appointees of every single President since Carter, as well as one of the two remaining LBJ appointees) mirrors the ideological and professional breadth of the huge array of groups that have asked the Court to reconsider the doctrine. Indeed, the increasingly relevant question now may not be who will oppose qualified immunity, but who will defend it?