Mark Joseph Stern
The Supreme Court dealt a blow to police reform in two unanimous decisions on Monday shielding officers from lawsuits accusing them of illegal brutality. Both rulings endorse a nearly insurmountable version of qualified immunity, the doctrine that protects police and other state officials from suit, raising the bar even higher for victims of unconstitutional conduct. The rulings are a major setback for the campaign to rein in qualified immunity and a clear signal that a majority of the court remains eager to protect violent officers from accountability.
Each of Monday’s decisions involves claims of unconstitutional force. In the first, Rivas-Villegas v. Cortesluna, officers shot a man with a “bean bag round” (actually a lead shot in cloth) twice at close range because he had a knife pointing face up in his pants pocket. The officers then kneeled on the man’s back for eight seconds. In the second case, Tahlequah v. Bond, officers fatally shot a man because he refused to drop a hammer that he was allegedly wielding as a weapon. The plaintiffs in both cases accused the officers of violating the Fourth Amendment’s prohibition against excessive force. The officers sought to dismiss the suits by asserting qualified immunity.
Surprisingly, the courts of appeals denied the officers’ requests, allowing both cases to go to a jury. These decisions were unusual because the Supreme Court has imposed a stringent requirement on civil rights plaintiffs suing state officials, including police: They must not only prove that an officer infringed on a constitutional right but also that this right was “clearly established” at the time. Unless there is precedent explicitly stating that the officer’s conduct was illegal, the victim cannot even take their case to a jury. Instead, a judge must throw the case out by granting the officers qualified immunity.
This rule, which the Supreme Court made up out of whole cloth, has wreaked havoc on Fourth Amendment rights, preventing countless victims of police brutality from getting their day in court. Most lower courts apply the doctrine vigorously, granting qualified immunity unless there is a precedent with virtually identical facts. If a victim cannot point to a past decision in which a court found that the exact same conduct was unconstitutional, they lose immediately.
This approach leads to grotesque results.
Consider, for instance, the officer shielded from suit after shooting an innocent man in his own home for no reason, or the officer protected by qualified immunity after allowing his police dog to maul a random homeless man. In both cases, the cops received qualified immunity because the courts could not identify a precedent with indistinguishable facts in which a court found a constitutional violation. As a result, the rights at issue were not “clearly established.” On the rare occasions when lower courts denied qualified immunity, the Supreme Court routinely reversed them in an unsigned summary opinion (called a per curiam) without oral argument or full briefing. In 2020, a Pulitzer Prize–winning Reuters investigation found that courts are granting qualified immunity to cops in a huge and ever-growing number of cases.
Over the past year, however, it appeared that the justices were retreating from their near-absolute position. In November, the Supreme Court issued a per curiam decision in Taylor v. Riojas. The facts of the case were appalling: Correctional officers in Texas forced a man to sleep naked in a cell covered in feces and sewage for six days. Incredibly, the 5th U.S. Circuit Court of Appeals granted qualified immunity to the officers who inflicted this torture, finding that they violated no “clearly established” right. By a 7–1 vote, the Supreme Court summarily reversed the 5th Circuit. The majority held that the victim’s treatment was so “egregious” that “any reasonable officer should have realized” that it violated his constitutional rights. Instead of focusing on whether these rights were “clearly established,” the majority focused on their “obviousness.”
Three months later, the Supreme Court summarily reversed another 5th Circuit decision granting qualified immunity to vicious prison guards, McCoy v. Alamu. The case involved an officer who blasted an incarcerated person in the face with pepper spray for no apparent reason. Initially, the 5th Circuit found that this act violated no “clearly established” right. But the Supreme Court ordered it to reassess that conclusion in light of Taylor.
These decisions led observers to speculate that the court was stepping back from its unwavering commitment to qualified immunity. Specifically, the justices seemed to relax the standard for “clearly established” rights, suggesting that officers could lose immunity if they engaged in obviously plainly unreasonable barbarity.
The speculation intensified in June when SCOTUS issued a 6–3 decision vacating a grant of qualified immunity to correctional officers who held an incarcerated person inmate in a prone position while putting pressure on his chest.
On Monday, though, the court dashed any hopes that it would seriously reconsider the doctrine. Rivas-Villegas and Tahlequah are blunt decisions filled with harsh language toward the lower courts for daring to deny qualified immunity.
In both cases, the lower courts cited precedents with roughly similar facts in which they found a violation of a “clearly established” right. Yet SCOTUS retorted that they had defined these rights “at too high a level of generality.” It insisted that these precedents were “materially distinguishable” on the basis of minor differences in fact patterns. For example, in Tahlequah, the officers walked at a normal pace toward the victim; in a past case, the officers sprinted toward him. In Rivas-Villegas, the officer merely placed his knee on the victim; in a past case, the officer “dug his knee into” him. These distinctions, the court concluded, are enough to merit qualified immunity.
The court’s hair-splitting exercise illustrates what one judge called an “Escherian Stairwell.” No two cases are exactly alike; there is always a way to distinguish precedents. If a court wants to grant qualified immunity, it can almost always find some way to differentiate a previous case from the one before it. In Monday’s decisions, SCOTUS sent a message that it will flyspeck lower court decisions granting qualified immunity, scolding them for ruling against cops in all but the most egregious cases. Rivas-Villegas and Tahlequah tell judges that they are on much firmer ground when they shield police from civil suits. The rulings incentivize decisions in favor of the police, even in cases with brutal facts. And so, by extension, they normalize reckless and violent behavior by law enforcement officers, who can remain confident that SCOTUS won’t force them to answer for their misconduct.
No justice dissented from Monday’s rulings—not even Justice Sonia Sotomayor, who is often a lonely voice against police brutality. The odds that the Supreme Court will reform its own qualified immunity jurisprudence are extremely low. Congress could abolish it, but Republicans refuse to weaken the doctrine even slightly, calling reform a “poison pill.” States can end qualified immunity under their own laws, and several already have, granting relief to victims who are locked out of state court. This progress is certainly welcome, but it shouldn’t be necessary in the first place. The Supreme Court invented qualified immunity all by itself. And the court should bear the burden of destroying it.