Advocates across the political spectrum, including lawyers, academics, and judges bound to apply qualified immunity have sharply criticized it, though the justices have for years balked at calls to upend or refine it.
The rejection, Monday, of a host of cases all at once, with only a one-case dissent from Justice Clarence Thomas—after they’d spurned three others on May 18—shows the justices have virtually no desire to revisit the issue any time soon, putting the ball in Congress’ court to pass legislation dealing with the issue if it so chooses.
The court’s latest refusal to reconsider the doctrine comes as police violence and accountability has gripped the nation, following the death of George Floyd in Minnesota on May 25 at the knee of a city police officer, murder charges against that officer, and government agents across the country using force against unarmed citizens protesting the status quo.
Under the doctrine, 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 serious claims out of court, so long as the specific factual allegations at issue hadn’t previously been found by a court to be unlawful.
Critics have characterized that rationale as a Catch-22, in which the lack of such judicial determinations becomes the basis for not making them.
The doctrine was created by the Supreme Court, leading advocates to call on the justices to undo it. In keeping with its usual practice, the high court didn’t explain why it denied review of the petitions. It takes four justices to grant review.
The Cato Institute’s Jay Schweikert, a fierce opponent of the doctrine who worked on some of the appeals seeking to take it down, called the rejections “a shocking dereliction of duty.”
While it’s “impossible to know for sure what motivated the Court to deny all of these petitions,” he said “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.”
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for crime victims and has frequently sided with the government at the high court in criminal matters, said after the denials that, “Given that qualified immunity is a matter of statutory interpretation and amendment of the statute is under active consideration in Congress, I think it is prudent for the Court to leave it alone for now.”
A unanimous high court said in a 2009 case that the doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
On Monday afternoon, House Judiciary Committee Chair Jerrold Nadler (D-NY), Congressional Black Caucus Chair Karen Bass (D-CA), and Subcommittee on the Constitution, Civil Rights, and Civil Liberties Chair Steve Cohen (D-TN) said the high court’s failure to act makes it more important for Congress to do so.
The representatives cited the proposed Justice in Policing Act of 2020, which they said “makes clear that qualified immunity cannot be used as a defense in civil rights suits against federal, state, or local law enforcement officers.”
It’s “long past time,” they added, “to remove this arbitrary and unlawful barrier and to ensure police are held accountable when they violate the constitutional rights of the people whom they are meant to serve.”
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