Qualified Immunity Undermines Civil Rights Claims, But the Supreme Court Won’t Hear It

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Ellen Bertels

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Ellen is a 3L at the University of Kansas School of Law. She earned degrees in Italian and English at the University of Kansas. Ellen is interested in public interest community lawyering, with a particular interest in voting rights and LGBTQ+ advocacy. In her spare time, she is an enthusiastic but terrible painter.

At the end of the 2019–2020 term, the United States Supreme Court declined to hear seven cases related to qualified immunity, a doctrine that shields governmental officials from liability in civil actions brought under 42 U.S.C. § 1983. Under this doctrine, a government official has immunity from suit unless the official violated a statutory or constitutional right and that right was “‘clearly established’ at the time of violation.”[1]

Many leading criminal law scholars[2] and legal advocacy groups[3] criticize qualified immunity on a number of grounds. 

First, they argue that the doctrine has no basis in the text or history of § 1983.[4]  The statute does not suggest any immunity for government officials.[5]  Thus, opponents argue, the Supreme Court engaged in policy making when it first established a good faith defense to civil rights claims in the 1960’s.[6]

Second, critics argue that qualified immunity allows police brutality to go unrecognized and unpunished, thus stripping victims of police brutality—disproportionately Black people—of any chance of recovery.[7]  In recent cases before the Supreme Court, qualified immunity kept civil litigants from recovering when officers took $275,0000 worth of rare coins and other currency,[8] shot a bystander child in the knee,[9] and unleashed a dog on a man lying on the ground.[10]

Finally, critics argue that the “clearly established” doctrine undermines future civil rights litigation.[11]  Because rights must be “clearly established” by specific case law in order to overcome qualified immunity, courts cannot recognize new violations of constitutional rights in qualified immunity claims, even if the government officials’ conduct is clearly or egregiously unconstitutional.[12]  When the Court does not recognize new constitutional violations, there is no new case law upon which future plaintiffs can “clearly establish” their § 1983 claims.[13]

In light of these criticisms, and concerns expressed by Justices Clarence Thomas[14] and Sonia Sotomayor,[15] the qualified immunity doctrine should be reconsidered.  It is disappointing the Court declined to do so this term.

[1] Tolan v. Cotton 572 U.S. 650, 656 (2014) (quoting Hope v. Pelzer 536 U.S. 730, 739 (2002)).

[2] See generally Brief of Legal Scholars as Amici Curiae in Support of Petitioner, Baxter v. Bracey, 140 S. Ct. 1862 (2020) (No. 18-1287), 2019 WL 2354728 [hereinafter Brief of Legal Scholars].

[3] See generally Brief for Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner, Baxter v. Bracey, 140 S. Ct. 1862 (2020) (No. 18-1287), 2019 WL 2370285 [hereinafter Brief for Cross-Ideological Groups].

[4] Id. at 13–17.

[5] Id.

[6] See, e.g., Brief for The Cato Institute as Amicus Curiae Supporting Petitioner, Baxter v. Bracey, 140 S. Ct. 1862 (2020) (No. 18-1287), 2019 WL 2354727, at *21.

[7] Brief for Cross-Ideological Groups as Amici Curiae Supporting Petitioner, supra note 3, at *15–16.

[8] Petition for a Writ of Certiorari, Jessop v. City of Fresno, 2020 WL 2515813 (2020) (No. 19-1021), 2020 WL 833098, at *6–10.

[9] Corbitt v. Vickers, 929 F.3d 1304, 1308, 1323 (11th Cir. 2019), cert. denied, 2020 WL 3146693 (June 15, 2020) (mem.).

[10] Baxter v. Bracey, 751 Fed. App’x. 869, 870, 873 (6th Cir. 2018), cert. denied, 140 S. Ct. 1862 (2020).

[11] Brief of Legal Scholars, supra note 2, at *25.

[12] Id.

[13] Brief for Cross-Ideological Groups, supra note 3, at *17–19.

[14] Baxter v. Bracey, 140 S. Ct. 1862, 1862–65 (2020) (Thomas, J., dissenting).

[15] Salazar-Limon v. City of Houston, 137 S. Ct. 1277, 1282–83 (2017) (Sotomayor, J., dissenting). 

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