Is Qualified Immunity at Risk in the Coming Supreme Court Term?


By: Phil Savrin

The year 2020 has been tumultuous and unpredictable in many ways.  Momentarily lost in the shuffle between the ongoing pandemic and the upcoming presidential election are the cries from some sectors of the community to “defund” police departments or alternatively shift funding priorities from law enforcement to more community-oriented programs. These calls grew to a crescendo in the aftermath of the high-profile deaths of George Floyd in Minnesota and Breonna Taylor in Kentucky.

In the midst of the emotionally laden protests, some rational voices called once again for the abolition of qualified immunity, the legal doctrine that protects public officials from being sued for damages unless they violated clearly established law. The main purpose of the immunity is to allow government employees to use their discretion reasonably in discharging their public duties without fear of civil liability. In the law enforcement context, for example, we would not want police officers to weigh whether they will be sued for damages when swift action is necessary to protect the public from harm. This means that police officers can be immune from civil suits even if they used excessive force, provided that the unlawfulness of the force was not clearly established in the law.

The recent calls to abolish qualified immunity have come from different sectors of society based on a belief that members of the public need to be compensated whenever unnecessary force is used by the police whether or not it was clearly unlawful. They argue that allowing compensation through damages, no matter the circumstances involved, would operate as a disincentive for unlawful conduct instead of operating with virtual impunity. The counterargument is that egregious uses of force are not protected by qualified immunity and removing the defense would result in reduced police interactions across the board thereby increasing the risk of harm to the public. After all, there is generally no requirement that police use any force at all even in the face of an immediate need to protect others from criminal activities.

Because qualified immunity is a doctrine created by the courts, it can be abolished in one of two ways:  reversal of precedent by the Supreme Court or by Congressional legislation. Early efforts to introduce bills in Congress to abolish the doctrine have appeared to peter out but there is at least one justice on the Supreme Court who has voiced a concern about the existence of qualified immunity. Periodically, Justice Thomas has written separate opinions noting his “growing concern” with the doctrine because it has evolved beyond the immunities that were in place in 1871 when Congress passed 42 U.S.C. § 1983 that allowed civil suits to be brought for constitutional violations. Court watchers were expecting there to be a landmark decision during the 2019 Term when multiple petitions for review of qualified immunity decisions were the subject of multiple court conferences only to have them all denied toward the end of the term. The lone dissenter was none other than Justice Thomas who reviewed the history of immunities and opined that the Supreme Court should take a closer look at the continuation of the qualified immunity defense. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

Because no other justices joined Justice Thomas’ dissent in Baxter, it can be inferred that they have little interest in overturning the firmly-established precedent and that it will take legislation from Congress to alter the course of the doctrine. These circumstances can change with vacancies opening up on the Supreme Court and changes in the office of the President and congressional leaders. For the time being, however, the doctrine lives on.

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