High court passes on qualified immunity challenges

Any changes in qualified immunity protections for government officials, including police officers, will not be made by the U.S. Supreme Court anytime soon after it denied eight challenges to the doctrine Monday.

Legislation is pending in Congress that would include a provision eliminating the decades-old legal protections, but Republicans in the U.S. Senate have said they would oppose any changes even though a bill is expected to pass the U.S. House of Representatives. U.S. Sen. Tim Scott, R-South Carolina, called the provision a "poison pill."

The bill has gained momentum among Democrats in Congress following the killing of George Floyd by a Minneapolis police officer.

The Supreme Court denied review in all of the cases, with Justice Clarence Thomas casting the lone dissenting vote in one of them, a ruling by the 6th U.S. Circuit Court of Appeals. His dissent was not joined by any other justice, although it's possible others would have accepted the writ petition but did not join Thomas' published dissent.

"I continue to have strong doubts about our §1983 qualified immunity doctrine," Thomas wrote. "Given the importance of this question, I would grant the petition for certiorari." Baxter v. Bracey et al., 18-1287 (S. Ct., filed June 15, 2020).

"It's disappointing," said Benjamin L. Pavone, a partner with Pavone & Fonner LLP in San Diego who filed an unsuccessful writ petition in another case involving qualified immunity. "It's like the court is dodging reality. Maybe they're putting it off until another case."

Christopher J. Walker, a professor at The Ohio State University Moritz College of Law who co-authored a law review article in 2018 on qualified immunity, said he was surprised the high court did not take any of the cases given the controversy -- voiced on the left and right -- about the sweeping protections police officers and other government officials have under qualified immunity.

"I wasn't expecting the end result to be just Justice Thomas dissenting," Walker said. "The Supreme Court is not going to be revisiting this issue anytime soon."

Supreme Court decisions in recent decades have expanded qualified immunity protections for government officials, including law enforcement. In 2009, the high court made it more difficult for civil claims to survive qualified immunity assertions because officers must have violated clearly established law. Pearson v. Callahan, 555 U.S. 223 (2009).

Justice Sonia M. Sotomayor has dissented on several occasions in qualified immunity cases involving police officers, saying the court "displays an unflinching willingness" to reverse lower courts when they refuse to grant it.

Thomas' critique of qualified immunity is that courts basically invented the doctrine a century after Congress passed a law, the Ku Klux Act of 1871, that "gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights," he wrote.

The law's text ""ma[kes] no mention of defenses or immunities... Instead, it applies categorically to the deprivation of constitutional rights under color of state law."

The qualified immunity doctrine "protects officers from good-faith mistakes" but often sets up a difficult hurdle for plaintiffs to clear, Walker said. Attorneys for police officers accused of excessive force argue there must be a specific court case asserting their conduct is out of bounds.

Last week, Noah G. Blechman of McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP asked a 9th U.S. Circuit Court of Appeals panel to dismiss a lawsuit against his clients -- several Pittsburg police officers accused of beating a suspect to death -- because qualified immunity "is supposed to provide police officers with breathing room when they're in difficult situations."

His motion to dismiss was taken under submission by the panel, which seemed unsympathetic to Blechman's argument. But he would be able to challenge an adverse verdict later.