US Supreme Court lined up 13 qualified immunity petitions for Friday hearing

Qualified immunity, the 50-year-old doctrine intended to protect public officials from frivolous lawsuits alleging violations of constitutional rights that has also been called a shield for bad police behavior, might be reconsidered or done away when the U.S. Supreme Court meets this Friday, attorneys say.

Washington D.C.-based policy analyst Jay Schweikert of the Cato Institute believes the Supreme Court intentionally delayed the resolution of several certiorari petitions for months so as to hear them in the upcoming conference along with several other cases also challenging qualified immunity.

"This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the court," Schweikert wrote in a Cato Institute law blog For the last several years he has advocated for the abolishment of the doctrine, calling it the "single biggest stumbling block to meaningful accountability for public officials in this country."

There are 13 certiorari petitions concerning qualified immunity in Friday's conference, indicating to several observers the justices are ready to reconsider the doctrine altogether.

"If history is any indicator, it will probably tighten or strengthen and expand qualified immunity even further," said Beverly Hills civil rights attorney Dewitt M. Lacy of the Law Office of John L. Burris . "The question is which way is it going to go?" he said. "I am certainly hopeful that they will do something to address what is becoming a growing problem in civil rights litigation, and that is the doctrine of qualified immunity."

In 2009 the Supreme Court in Pearson v. Callahan made it more difficult for plaintiffs making excessive force claims to survive a qualified immunity defense. It allowed lower courts the option to bypass the question of whether excessive force was used and focus on whether or not the conduct had violated clearly established law, Lacy said.

A San Diego civil rights lawyer whose certiorari petition challenging qualified immunity in a case against California prisons was denied review, argued Congress, not the Supreme Court, should have the final say on the issue.

"A perusal of qualified immunity law quickly reveals it to be singularly detached from normative legal principles and analysis," Benjamin L. Pavone of Pavone & Fonner wrote in an email Friday. "Its defects are numerous and serious, as reflected by a series of scholarly articles and legal briefs. It cannot remain the law if other U.S. constitutional principles are to be respected. Nor at this point should the judiciary be tasked with the job of reforming it, in my view. There has been entirely too much judicial tinkering with executive accountability, to the point where the doctrine works in Byzantine ways, always to the detriment of the victim, and feels at times like naked protectionism."

Defenders of the doctrine include Washington D.C.-based Aaron L. Nielson of Kirkland & Ellis LLP and professor Chris J. Walker at The Ohio State University Moritz College of Law, who co-wrote an essay called, "A Qualified Defense of Qualified Immunity" in the 2018 Notre Dame Law Review. "On one hand, government officials sometimes suffer no personal liability even when they violate constitutional rights. But at the same time, the threat of punishing an officer for violating previously unknown rights could chill legitimate governmental action," they argued.

Qualified immunity is tricky because it is a balance between the need to hold public officials accountable for constitutional violations and the need to shield officials from liability when they perform their duties reasonably to maintain public safety, Nielson said in an email last week.

"Obviously, constitutional violations are wrong," Nielson wrote. "But at the same time, it can be unclear whether particular conduct actually violates the Constitution."

In a case from California last year, the Supreme Court (City of Escondido v. Emmons, 139 S. Ct. 500 (2019) unanimously concluded that qualified immunity may be appropriate when an officer forced a domestic violence suspect to the ground and handcuffed him after the person ignored an order to keep the door open and tried to brush past the officer.

"Video evidence shows that the man was not in pain," Nielsen said. "The Supreme Court explained that even if that limited use of force was unconstitutional, a reasonable officer may not have known it," Nielson continued. "In other words, there are cases where qualified immunity is inappropriate, but there also are cases where the law is unclear and it would be unfair to punish an officer who tried to protect the public but guessed wrong about what a future court case might say."

Walker agrees with Schweikert that the Supreme Court intentionally packed multiple certiorari petitions into Friday's conference to have a robust discussion about the doctrine, but he is not so confident it will make any sweeping changes.

"It's obviously a better sign for those that want qualified immunity reconsidered that this is happening, but I also wouldn't be entirely surprised if they're all denied," Walker said in a phone interview last week. "So I think he's right that the court is making a concerted effort to take a look at it, that this isn't random. What they actually do, who knows?"

One of Nielson's and Walker's central points is that regardless of how one feels about qualified immunity, any change to it should be made by Congress and not the Supreme Court.

"In the statutory context, the Supreme Court said stare decisis is even stronger than in the constitutional context, which we think is kind of counterintuitive. But it's not because in the constitutional context, the only way other than the Supreme Court revisiting a wrong decision to undo it is to go through the amendment process," Walker said.

"And in the statutory context, the Supreme Court has said Congress can revisit that statute if they think we got it wrong," he continued. "And if years and years passed by and they haven't revisited that statute, that stare decisis power is even stronger, because now we're going to assume that Congress is legislating against the backdrop of our prior interpretation even if it's wrong. So argument in our paper and in our follow up one is, 'Hey, qualified immunity may be a bad thing or at least certain parts of may be a bad thing' and maybe Jay's right that the courts have become to too hard on what plaintiffs have to do, but ultimately, it's Congress that should be responding, not the court."

Although they differ on the viability of the doctrine Pavone agreed with Walker on it being an issue for Congress. "The consistent judicial encroachment on constitutional tort social policy has, by the judiciary's own periodic admissions, encroached on the domain of the legislature in violation of the separation of powers doctrine," he said. "It should simply be declared unconstitutional. Reformation of it should be referred to Congress, so that the People have an appropriate voice in the amount and kind of accountability to impose on their government."

Qualified immunity is not fair and not part of common law history, Schweikert said. "The court has now said it's not enough to show that your rights have been violated, you have to show that the defendant violated clearly established law, which in practice is an extraordinarily difficult and exacting standard for civil rights plaintiffs to meet because it requires them to identify not just a clear legal rule but usually a prior case already decided in the relevant jurisdiction with functionally identical facts.

The result, Schweikert said, is individuals are routinely denied justice even when there's no dispute their rights were violated. In turn, public officials, especially members of law enforcement, are granted the comfort of knowing they will likely not face consequences even if they commit constitutional violations, he argued.