Advocates across the political spectrum have been clamoring
for the court to curtail or even eliminate the doctrine that they say too often
deprives civil rights plaintiffs of the ability to challenge abusive behavior
by police and other public officials, reported Bloomberg News.
Officials can receive immunity from suit if their alleged
actions weren’t “clearly established” violations of constitutional rights.
That’s had the effect of keeping even the most seemingly outlandish conduct out
of court, so long as the specific factual allegations at issue hadn’t
previously been found by a court to be unlawful.
Monday’s denials in three unrelated cases—from Nebraska, California,
and Louisiana—show
that the justices aren’t ready to take on the issue. Not yet, anyway. At least
10 other petitions on the subject are pending on the high court’s docket.
The justices were initially set to consider 13 qualified
immunity appeals at their private conference on Friday, including these three
now declined. That raised speculation as to whether the court might be eyeing one
or more of the petitions as a vehicle for taking up the doctrine that’s been
criticized not just by lawyers and academics, but even by some of the lower
court judges bound to apply it.
Yet the court only wound up considering these three cases at
the conference, putting the others on hold and, in turn, causing further
confusion and speculation about its qualified immunity plans.
Thursday’s Conference
The rejection of these three cases doesn’t make those plans
clearer. After the denials, the justices put the remaining petitions back on
for consideration at this Thursday’s conference, so the next chapter in the
high court’s qualified immunity saga could be published by the court in an
orders list next week.
Jay
Schweikert of the Cato Institute deemed the denials “definitely a
disappointment,” pointing to what he called the “especially egregious
applications of qualified immunity” in two of the cases. In the Nebraska
matter, a police officer received qualified immunity despite allegedly
body-slamming a small woman who walked away from him during an interview.
In the California case, officers allegedly stole $225,000 in
cash and rare coins while executing a search warrant.
In successfully opposing high
court review, the Nebraska officer observed in his brief to the justices that, “for
more than 30 years, the Court has repeatedly emphasized that the objective
reasonableness of a particular use of force by law enforcement must consider
the totality of the facts within the perception of the officer at the scene.”
He said he seized the woman in a “bear hug” and “brought her
to the grass after she physically obstructed police operations, proceeded to
move toward a person involved in a heated altercation with one of her family
members, and ignored” the officer’s commands.
In fending off the California appeal, those officials told the
justices that no theft took place, and that calls from outside groups,
including Cato, to eliminate or curtail qualified immunity “should provide no
support for review of this case.”
Despite the closely-watched nature of the issue, none of the
three denials prompted separate statements from any of the justices, including
Justices Sonia Sotomayor and Clarence Thomas, who have suggested that the court
further examine the issue.
Powder Dry
That could show that some members of the court are keeping
their powder dry for one or more of the still-pending petitions, or it could
simply reinforce the court’s lack of interest in taking up the issue for
whatever reason.
As an example of the high court’s thinking on the subject,
in a 2017 ruling, the justices cautioned
against second-guessing law enforcement actions in a police-shooting
case.
Advocates are disappointed that the justices won’t
second-guess their approach to qualified immunity in any of the cases declined
on Monday.
While conceding that the doctrine “protects government
officials’ innocent mistakes from harassing litigation,” New Civil Liberties
Alliance senior litigation counsel Michael P. DeGrandis said
the California case “shows us how easily bad people can pervert qualified
immunity in a way that deprives us of our civil rights.”
Still, some qualified immunity critics see hope on the
docket.
Schweikert added that “the fact that the Justices denied
these petitions doesn’t necessarily mean they aren’t still interested in
revisiting qualified immunity.” He noted the 10 outstanding petitions that were
taken out of consideration from the justices’ last conference.
Among those petitions, he said, are ones that “raise the
fundamental question of whether the doctrine should be reconsidered entirely.”
Their rescheduling could “indicate that the Justices are more interested
in addressing this larger question, rather than taking a narrower approach,”
Schweikert said.
But even if the court takes up one or more of the remaining
petitions, it’s unlikely that a “seismic shift is in the offing” when it comes
to the immunity doctrine, said Kent
Scheidegger, of the Criminal Justice Legal Foundation, who has filed many
briefs over the years supporting the government at the high court in various
cases.
“This is a well-established body of law,” he said, and,
unlike constitutional doctrine, “it is one that Congress could change any time
if it wanted to.”
The cases are Kelsay
v. Ernst, U.S., No. 19-682, review denied 5/18/20; Jessop
v. City of Fresno, U.S., No. 19-1021, review denied 5/18/20; and Clarkston
v. White, U.S., No. 19-1093, review denied 5/18/20.
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