A Footnote on Qualified Immunity

Not too much criminal law action in the U.S. Supreme Court today. No new cases were accepted for full review, and there are no opinions of the Court.

There is one case on qualified immunity in the Opinions Relating to Orders bin. The case indicates little appetite on the part of the Court to make any major changes in this area.

The case of Tucker v. City of Shreveport, No. 21-569, involves the familiar scenario of a traffic stop and officers’ use of force against a stoppee who claims to have not been resisting but instead compliant. In this case, there is a video available. On the basis of the plaintiff’s allegations in light of the facts not reasonably subject to dispute, four federal judges split 2-2. The majority of the three-judge appellate panel thought the officers were entitled to qualified immunity. The district judge and the court of appeals dissenter thought not.

The petition does not indicate that the plaintiff sought review by the full Fifth Circuit before going to the Supreme Court. That is generally a bad idea and especially so in a case that is “fact bound” and a dubious candidate for certiorari in the first place.

Counsel for the officers (and the city, though this proceeding is only about immunity for the officers) waived the right to respond to the petition. The Cato Institute, in its continuing quest to insure that no one in their right mind would ever want to be a police officer, moved to file an amicus brief in support of the petition.

Today the high court denied the petition without the need to call for a response from the officers. There are no dissents, but Justice Sotomayor wrote a brief statement “respecting” the denial of certiorari, the traditional term for such statements.

While this case does not meet our traditional criteria for certiorari, I write to note that the Fifth Circuit’s reversal of the District Court’s detailed order denying qualified immunity appears highly questionable for the reasons set forth by Judge Higginson’s thorough dissenting opinion. 998 F. 3d 165, 185–187 (2021).

Why doesn’t the case meet the Court’s “traditional criteria for certiorari”? Most likely because it is only a case of borderline application of existing law. Substantial changes in direction are not on the table. Even the Justice most likely to be receptive to such proposals does not appear to think so.

The Court is particularly reluctant to overturn its precedents when the question is subject to control by statute and Congress could change the result if it wanted to. For example, a wrong precedent on sales tax on interstate mail orders stood for a long time in the hope that Congress would sort out the complexities better than the judiciary could. But it never did, and the Court eventually overruled the precedent.

Qualified immunity is mostly good policy, however dubious it may be as a matter of original interpretation. It probably could use some tweaking in the area of the specificity of precedent needed to defeat immunity. But the matter has been under consideration in Congress, and it would be unwise for the Court to overrule its precedent while congressional action on the subject remains a genuine possibility.

Legislation on qualified immunity in the present Congress is unlikely. That is a good thing, as the present Congress is unlikely to enact good policy. The next one is likely to be more responsive to the genuine needs of law enforcement. Perhaps a reasonable statutory solution can be found then.

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