“This represents a doubling-down by the Supreme Court on qualified immunity,” said Barry Friedman, founding director of New York University School of Law’s Policing Project.
Joanna Schwartz, a qualified-immunity expert and researcher at the University of California at Los Angeles, said the “two decisions taken together send a message that the Supreme Court is not interested in participating in the regulation of police.”
The court overturned the lower-court decisions without ordering full briefing and argument, a sign it did not see them as close calls. There were no dissents.
For advocates taking aim at qualified immunity, the pair of unsigned rulings sent another strong message: The most likely path to changing the doctrine is through legislation, not the courts.
“It is absolutely important for statehouses to open up their courthouse doors to individuals with claims against officers,” said Anya Bidwell, an attorney with the Institute for Justice, which has lobbied in favor of state bills seeking to undo the doctrine.
So far, though, those political efforts have been largely fruitless, as bipartisan talks in Congress have broken down over efforts to reduce qualified-immunity protections for police and dozens of state-level bills have died under heavy pressure from police unions.
The Supreme Court’s decisions on Monday suggest the court is sticking with its own strict interpretation of the doctrine. To sue, plaintiffs have to show that officers violated rights that are “clearly established” by previous case law — meaning they have to find another case involving nearly identical circumstances.
Advocates argue that the doctrine creates a Catch-22, because it requires a previous ruling but denies plaintiffs an opportunity to set a precedent for the next victim. Monday’s court rulings uphold and reinforce that conundrum, opponents said.
In the new rulings, the court overturned a lower court’s decision that denied qualified immunity for officers in Oklahoma who fatally shot a man who was threatening them with a hammer. The court also overturned another lower court’s decision to deny qualified immunity to an officer in California who was accused of using excessive force while handcuffing a suspect.
Bidwell said the rulings were not a surprise. In both of the cases, officers had to make rapid-fire choices about the type and method of force they would use — a situation where the courts have given police wide discretion.
“The Supreme Court has consistently over the years emphasized it would defer to law enforcement when it comes to split-second decision-making,” Bidwell said.
Police praised the decisions. On Monday, Patrick Yoes, president of the National Fraternal Order of Police, said the decisions are “consistent with our deeply held beliefs and prior Supreme Court decisions.”
Greg Champagne, an official with the National Sheriffs’ Association, pushed back against criticism of the rulings, saying they did not provide “any type of blanket immunity” to officers.
Advocates for changing qualified immunity, meanwhile, pointed to state legislatures as a looming battleground.
A recent Washington Post analysis showed that since Floyd’s death, seven state qualified-immunity bills have been enacted. Colorado is the only state that has completely barred the legal defense of qualified immunity for officers. Four states passed bills that restrict the use of qualified immunity in the most egregious cases. And two states — Iowa and Arkansas — strengthened the qualified-immunity rights of its officers.
Four state bills are still pending. Dozens of others have died under lobbying pressure from law enforcement organizations.
As many state legislatures prepare to come back in January, legal experts said lawmakers could pursue new avenues to end or limit qualified immunity, including by creating statewide use-of-force policies for police. Most police agencies largely set their own policies, which has left courts to evaluate civil rights violations.
“If the state rules were clearer, there would be less of an application of qualified immunity,” said Friedman. “I don’t believe the Supreme Court will conclude that officers should be immune from liability even if they violate clearly established state statutes. Making those rules clear is a next step.”
The Oklahoma case is City of Tahlequah v Bond. The California case is Rivas-Villegas v Cortesluna.