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U.S. Supreme Court Declines to Take Up Qualified Immunity Yet Again

MIAMI, FLORIDA - JUNE 14: Demonstrators participate in a protest against police brutality on June 14, 2020 in Miami, Florida. Protests continue in cities throughout the country over the death of George Floyd, who died while in police custody in Minneapolis on May 25th. (Photo by Joe Raedle/Getty Images)
By Joseph Fawbush, Esq. on June 15, 2020 | Last updated on August 09, 2021

The U.S. Supreme Court will likely not take up qualified immunity this term, keeping in place the controversial doctrine that provides a liability shield for police officers and other public officials. On Monday, June 15, the Supreme Court again declined to hear a qualified immunity case, the latest in a series of cases the Supreme Court has passed on deciding.

The case involved an allegation that police sicced a dog on a burglar even after the burglar was in custody. The man filed a §1983 claim, alleging police used excessive force.

Justice Thomas Dissents, Again

Justice Clarence Thomas wrote the lone dissent in denying cert, arguing that there is no underlying statutory authority for qualified immunity. Section 1983, the statute that provides a civil remedy for constitutional violations, does not itself provide immunity for police or public officials.

Under the modern application of qualified immunity, courts look to previous cases to determine whether an officer violated a “clearly established" right in using excessive force. The practical result of this doctrine is that an officer is afforded immunity unless there has been a previous case with almost identical facts. “There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe," Justice Thomas argued.

Justice Thomas takes the argument further. The previous standard, derived from common law, held that officers and public officials were awarded qualified immunity based on good-faith conduct. Justice Thomas argued this standard may not apply to officers who violate constitutional rights, but expressed “no definitive view" on that issue. If the court did take that position, there would be no statutory or common-law basis for qualified immunity, and the doctrine would be revoked.

Scaling Back or Revoking?

Justice Thomas has a very skeptical view of qualified immunity, saying as much in his dissent. Others on the court, notably Justice Sonia Sotomayor, have also said the court should take another look at qualified immunity, although none have gone as far publicly as Justice Thomas. The Supreme Court as it is currently comprised would be unlikely to completely revoke qualified immunity. There is a chance, however, the Supreme Court could amend the current standard, perhaps going back to a subjective good faith standard in lieu of the current standard. It would also be possible to broaden the clearly established right standard so that it would be easier for victims of civil rights violations to get around the qualified immunity bar.

Justices Thomas and Sotomayor are not alone in viewing qualified immunity skeptically while still being ideological opposites. The CATO Institute, the Institute for Justice, the NAACP, and the ACLU, organizations with vastly different philosophies and organizing principles, have all argued against qualified immunity. It remains uncertain, however, if three other justices would be willing to join with Justices Thomas and Sotomayor.

More Opportunities Next Term

While the Supreme Court declined more than one qualified immunity case this term, several have been delayed. And, as qualified immunity cases are regularly heard in federal appellate courts, plenty of opportunity will arise in the future if the court wants to take another look. With an election coming up and legislation already introduced to revoke qualified immunity, however, there is a chance Congress will alter qualified immunity before the Supreme Court does. For now, the status quo has held, but the fight over this contentious doctrine is by no means over.

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