The Push to End Qualified Immunity Gets a Cold Shoulder

There has been a loud campaign for years now, led by a number of libertarians and some liberals, to end qualified immunity for the police.  The gist of their argument is that police who behave properly don’t need it, and the others shouldn’t have it.  Their legal hook is that QI is a “judge-created doctrine” with no anchor in the text of the Constitution (that the Left gets that one out without choking has to be a source of no little wonderment).

Kent has briefly and persuasively dispatched this argument before, and the Supreme Court was having none of it today, reversing two lower court cases that had refused to grant QI to police.  When, as in these cases, the anti-police side can’t even get Justice Sotomayor, you know it’s time for them to move on (which they’re not about to anyway).

I’ll just quote verbatim Doug Berman’s take on it:

The two SCOTUS per curiam summary reversals both involve short unanimous decisions overturning rulings by the Ninth and Tenth Circuits that denied qualified immunity to police officers. The Ninth Circuit case, Rivas-Villegas v. Cortesluna, No. 20-1539 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving “Rivas-Villegas plac[ing] his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving.”  The Tenth Circuit case, City Tahlequah v. Bond, No. 20-16689 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving two officers shooting to death a suspect who “raised the hammer [which he grabbed during a tense encounter] higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers.”

Though I do not follow discussions and debates over policing doctrines closely, I know that there has been considerable interest in encouraging the Supreme Court to cut back (or even eliminate) the judge-created doctrine of qualified immunity.  These two new decisions would seem to suggest that this current Court seems just fine with applying qualified immunity and that any significant changes to the doctrine for the police will need to come from other branches.

The Heritage Foundation’s description of the opinions is here:

RIVAS-VILLEGAS v. CORTESLUNA, No. 20-1539. In a per curiam opinion, the Court reversed a Ninth Circuit decision and held that an officer in a §1983 lawsuit was entitled to qualified immunity because the case relied upon by the lower court did not give the officer fair notice that his conduct violated the petitioner’s clearly established rights. The officer, while dealing with a non-compliant subject of a serious domestic violence incident who had a knife visibly sticking out of his pocket, briefly placed his knee on the subject’s back to restrain him while another officer removed the knife and handcuffed him. The subject sued the officer under §1983, alleging that the officer used excessive force. The Ninth Circuit agreed and determined that the officer was not entitled to qualified immunity, citing existing precedent that “put [the officer] on notice that his conduct constituted excessive force,” even while acknowledging that the “the officers here responded to a more volatile situation than did the officers” in the precedent case. The Supreme Court reversed, noting that the inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” It found that the facts of this case materially distinguished it from the case relied upon by the Ninth Circuit, and that therefore the officer was entitled to qualified immunity.


CITY OF TAHLEQUAH, OKLAHOMA v. BOND, No. 20-1668. In a per curiam opinion, the Court reversed a Tenth Circuit decision and held that two officers in a §1983 lawsuit were entitled to qualified immunity because the lower court failed to cite a single precedent finding a Fourth Amendment violation under similar circumstances. The officers responded to an emergency call from the respondent wife about her intoxicated husband, whom they encountered in his garage. The husband grabbed a hammer from his workbench and faced the officers while grasping the hammer with both hands at shoulder height, as though he were holding a baseball bat. The officers drew their firearms and backed away while yelling at the husband to drop the hammer, and fatally shot him as he took a stance as if he were about to throw the hammer at them. The respondent wife filed a §1983 suit against the officers, alleging excessive force. A Tenth Circuit panel held that the officers were not entitled to qualified immunity because a jury could find that the officers’ engaged in reckless or deliberate conduct that created a situation requiring deadly force. The Supreme Court reversed, determining that, on the established record, the officers plainly did not violate any clearly established law. None of the decisions relied upon by the Tenth Circuit “comes close to establishing that the officers’ conduct was unlawful,” and the facts of those cases differed dramatically from the facts of the case at hand.

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