The Supreme Court’s Dereliction of Duty on Qualified Immunity

This morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively.

There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten‐​year‐​old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by laying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up.

Justice Thomas was the only member of the Court who would have granted any of the petitions. He dissented in the Baxter case, writing that “[b]ecause our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.” It’s especially disappointing that Justice Gorsuch didn’t join this dissent, as he has otherwise demonstrated himself to be a principled advocate of textualism and originalism, and also willing to reconsider misguided precedent. And it’s surprising that Justice Sotomayor had nothing to say regarding these cases, given her previous comments in a dissent (joined by Justice Ginsburg) noting that qualified immunity had become an “absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth Amendment.” Perhaps one or more of these Justices will agree to hear some future case. But for now, Justice Thomas stands alone.

In the tumultuous wake of George Floyd’s brutal death at the hands of Minneapolis police, this development could not come at a worse time. 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 this culture has many complex causes, one of the most significant is qualified immunity. By effectively rewriting and undermining the civil rights law that was supposed to be our primary means of holding public officials accountable, the Supreme Court shares a huge portion of the blame for our present crisis.

It’s impossible to know for sure what motivated the Court to deny all of these petitions. But one possibility is that the Justices were looking closely at developments in Congress—where members of both the House and the Senate have introduced bills that would abolish qualified immunity—and decided to duck the question, hoping to pressure Congress to fix the Court’s mess. It is certainly encouraging that so many legislators have finally turned their attention to qualified immunity. But the mere fact that Congress can fix this mess doesn’t absolve the Supreme Court of its obligation to fix what it broke—the Court conjured qualified immunity out of nothing in the first place, and the Justices had both the authority and responsibility to correct their own blunders, no matter what happens in the legislature.

Qualified immunity will go down in history as one of the Supreme Court’s most egregious, costly, and embarrassing mistakes. None of the Justices on the Court today were responsible for creating this doctrine, but they all had a responsibility to fix it—and except for Justice Thomas, they all shirked that responsibility. It is now all the more urgent that Congress move forward on this issue and ensure that all public officials—especially members of law enforcement—are held accountable for their misconduct.

Fourth Circuit Judge Criticizes Qualified Immunity

Judge James Wynn Jr. took to the Washington Post’s opinion pages to criticize qualified immunity yesterday.  The scathing op-ed remarks on how qualified immunity “prevents plaintiffs from pursuing their claims, gives officers little guidance on the contours of individuals’ rights and excuses ever more egregious conduct from liability.”

It’s rare to see a sitting appellate court judge speak out so openly against a legal doctrine, but qualified immunity is an exceptional mistake with an extraordinary cost.  Judge Wynn’s frank assessment that qualified immunity is a “defense unmoored” from a proper legal foundation contributes a valuable voice to the growing chorus of legal scholars opposed to the doctrine.  Framed by the unconscionable killing of George Floyd, the opinion brings in to sharp relief the cost of refusing to the correct the high Court’s error.

Read the full opinion on the Washington Post

Slap in the face: QI video breakdown

Content creator @karan_menon created this hilarious short illustrating the circular logic of qualified immunity.  We break down how how the clip translates into actual law.

 There are two things going on here that deserve a closer look. 

Did he get in trouble then?

Public officials are protected by qualified immunity unless they violated “clearly established law.”  It might seem obvious that stealing $225,000 worth of assets violates the Fourth Amendment prohibition of “unreasonable searches and seizures.”  But it’s not “clearly established” according to the law.

“Clearly established law” means that there needs to another case where a court ruled nearly-identical conduct violated a constitutional right.  Note how in the case above, the Ninth Circuit noted that there were previous instances of similar conduct that courts had found violated the Fourth Amendment: but because they occurred in another jurisdiction, the law wasn’t “clearly established” in their court.

No one actually believes police officers and other public officials sit down to read their local court reporter for guidance on what practices do and do not amount to Constitutional misconduct.  Nor should they need to scour case law to understand that theft is not a constitutionally permissible form of seizure.  The “clearly established” standard is bizarre and arbitrary, and it’s only half of the equation.

According to the rules, he can’t get in trouble now.

While “clearly established” is a groundless standard, it is at least logically functional.  So long as courts acknowledge the first instance of misconduct, a body of law would eventually, albeit haphazardly, re-establish the causes of action Congress intended when it passed §1983.  The Supreme Court recognized this in Saucier v. Katz:

This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.

Saucier v. Katz, 533 U.S. 194

The Supreme Court then promptly unacknowledged this in Pearson v. Callahan, ruling that judges could choose which factor to decide first.  Because of the Court’s ruling Pearson, the same conduct can be dismissed repeatedly for lack of “clearly established law” simply because the court, in its discretion, has decided not to establish it.  The result is a baseless, self-defeating standard that allows the same misconduct to go unpunished time and time again. 

So there you have it: qualified immunity really is just like a never-ending slap in the face.

More of Karan’s work can be found on TikTok, YouTube, and Instagram.

Rebutting the IACP’s Spurious Defense of Qualified Immunity

The Cato Institute has been engaged in a strategic campaign to abolish qualified immunity for over two years now. In all that time, the closest I’ve seen to an actual defense of the doctrine is a 2018 law review article by Professors Aaron Nielson and Chris Walker called A Qualified Defense of Qualified ImmunityAs the title would suggest, this is hardly a robust defense, but rather a limited, measured argument that the legal case against qualified immunity isn’t quite as strong as its critics suggest. The article doesn’t really defend qualified immunity as a policy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, I have said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.

Until now.

In the wake of George Floyd’s death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (“IACP”) has put out a short “IACP Statement on Qualified Immunity.” In a way, I’m quite grateful that they’ve done so — by setting out such a hollow and misleading defense of the doctrine, the IACP has actually done a tremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Let’s go line‐​by‐​line and explain in detail exactly what’s wrong with each argument put forward in this statement:

What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which a reasonable officer would have known.

This is, technically, a correct summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someone’s constitutional rights, they cannot be held liable unless the victim can show that the police violated “clearly established law.” And as I have discussed many times, “clearly established law” is an exacting standard, which generally requires would‐​be civil rights plaintiffs to identify not just a clear legal rule, but a prior case with functionally identical facts. Thus, whether a victim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.

Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individual’s constitutional rights.

This is a highly misleading statement. The IACP here is presumably paraphrasing the Supreme Court’s statement that “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” But whether a defendant “knowingly” violated the law in this context doesn’t actually turn on the defendant’s personal knowledge or intent; rather, it turns entirely on the defendant’s presumed “knowledge” of “clearly established law.” In other words, courts will not find that a defendant “knew” they were violating someone’s constitutional rights unless the victim can show a prior case where someone else’s rights were violated in a nearly identical manner.

To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have “knowingly” violated someone’s rights:

  • In Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins while executing a search warrant. The court said 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 specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” This case in particular illustrates just how facile the IACP’s above statement is. Of course these officers knew they were violating the law — but because there was no prior case involving such outlandishly illegal misconduct, they received qualified immunity.
  • In Baxter v. Bracey, the Sixth Circuit granted immunity to officers who deployed a police dog against a suspect after he had already surrendered and was sitting on the ground with his hands up. In this case, the victim actually did find a prior case with nearly identical facts, in which the Sixth Circuit had held that it was unconstitutional for police to deploy a dog against a suspect who had surrendered by laying on the ground. But the court nevertheless held that the police had not “knowingly” violated Baxter’s rights, because in that prior case, the suspect was laying on the ground, whereas Baxter was sitting on the ground with his hands up.
  • In Kelsay v. Ernst, the Eighth Circuit granted immunity to a police officer who grabbed a small woman, Melanie Kelsay, 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.” To make matters worse, the only reason the police were talking to Ms. Kelsay in the first place is because they mistakenly believed she was the victim of an alleged assault (in actuality, she was just playing around with a friend in a public pool, but onlookers misinterpreted what was happening and called the police). Nevertheless, the court held that this officer did not “knowingly” violate Ms. Kelsay’s rights, because no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”

So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesn’t protect officers who “knowingly” violate people’s constitutional rights. But that’s only because “knowingly” in this context is defined in reference to the Kafkaesque “clearly established law” standard.

Qualified immunity is an essential part of policing and American jurisprudence.

This statement is just stupendously wrong. As Professor Will Baude has demonstrated at length — and as Cato has argued in many of our amicus briefs on the subject — qualified immunity is completely untethered from both the text of Section 1983 and the common‐​law history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a “good faith defense” to Section 1983 in a 1915 case called Myers v. AndersonIt wasn’t until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the “clearly established law” standard — which is the key feature of modern qualified immunity — wasn’t invented until 1982.

So, on the one hand, we have an atextual legal rule conceived through raw judicial policy‐​making by the Supreme Court 38 years ago. And on the other, we have Chief Justice Marshall’s statement in Marbury v. Madison that: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Only one of these two contradictory principles is “essential” to American jurisprudence.

[Qualified immunity] allows police officers to respond to incidents without pause, make split‐​second decisions, and rely on the current state of the law in making those decisions.

This statement is either a reckless mistake or an outright lie. It is true, of course, that police officers do have to make split‐​second decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether a constitutional violation occurred in the first place are highly deferential to on‐​the‐​spot police decision‐​making. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendment’s “unreasonableness” standard must “allow[] for the fact that police officers are often forced to make split‐​second judgments—in circumstances that are tense, uncertain, and rapidly evolving” and cannot be judged with “the 20/20 vision of hindsight.” Qualified immunity is entirely unnecessary to ensure that police can make quick, split‐​second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.

Wrong again. If an officer is truly acting in “good faith” — i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances — then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct a search that turns up nothing, or use force that — with the benefit of hindsight — was unnecessary to effect an arrest, doesn’t mean the police have violated anyone’s constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and “good faith” policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because “good faith actions” generally do not violate people’s rights in the first place.

The loss of [qualified immunity] would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

Consider for a moment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to a lower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating people’s constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because I’m quite confident that they’re wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is a feature, not a bug, of our civil rights laws.

Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far‐​reaching, deleterious effect on the policing profession’s ability to serve and protect communities.

The conclusion to the IACP’s statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Cato‐​led “cross‐​ideological” amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself, by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine police‐​community relations than by holding police to a lower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.

For this reason, more thoughtful members of law enforcement — like the Law Enforcement Action Partnership — have actually joined Cato’s briefs urging the Court to reconsider qualified immunity and have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.): “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.” Just so.

* * *

In conclusion, the IACP’s defense of qualified immunity is, at best, misleading, counter‐​productive, and short‐​sighted, and at worst, full of outright misrepresentations. Nevertheless, I can’t help but pity whatever poor soul was charged with the task of actually writing that statement — it’s hard to defend the indefensible.

Players Coalition backs Qualified Immunity repeal

Justin Amash and Ayanna Pressley have introduced bipartisan legislation that would end qualified immunity.  And today, their bill received an enormous outpouring of support from 1,400 current and former pro athletes, coaches, and managers from across the NFL, NBA, and MLB.

The letter remarks on several cases where qualified immunity has been used to excuse egregious allegations of misconduct:  

The 8th Circuit applied it to an officer who wrapped a woman in a bear hug, slammed her to the ground, and broke her collarbone as she walked away from him. The 9th Circuit applied the doctrine to two officers who allegedly stole $225,000 while executing a search warrant. The Eleventh Circuit applied the doctrine to protect an officer who unintentionally shot a ten-year old while firing at the family dog (who, much like the child, posed no threat).

Excerpt from Players Coalition petition in support of the Ending Qualified Immunity Act (case links added)

The enormous list of names behind the petition adds to a growing chorus of voices calling for the life-threatening doctrine of qualified immunity to be abolished. You can read more about these cases, as well as the full text of the Players Coalition petition, below.

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.