Should the Supreme Court Revisit Qualified Immunity?

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Janelle Thompson, Associate Member, University of Cincinnati Law Review

I. Introduction

Recent occurrences of police violence against unarmed Black Americans have put officer accountability in the national spotlight once again. A sizable chunk of the discussion concerns qualified immunity, a concept created to give law enforcement some “breathing room” to effectively do their jobs without being continuously sued.[1]  Qualified immunity is a judge-made doctrine that originates from the 1967 Supreme Court case of Pierson v. Ray.[2] In Pierson, a racially integrated group of pastors attempted to sit in a segregated bus terminal in Jackson, Mississippi during the Civil Rights Movement.[3] The pastors were arrested for breaching the peace under a code that was later found unconstitutional (§ 2087.5 of the Mississippi Code). The pastors sued the police officers and the judge that sentenced them for false arrest and imprisonment.[4] The Court grappled with the possible liability of local police officers and judges under §1 of the Civil Rights Act of 1871, 17 Stat. 13.[5] While the Court decided that judges are immune from being sued for their decisions, the question was not as clear for police officers. Using common-law tort principles, the Court held that immunity through a defense of good faith and probable cause applied to the officers under §1983.[6] 

Since 1967, qualified immunity has evolved into a murky area of constitutional jurisprudence. Courts will ask several questions when a case involves qualified immunity, police officers, and the Fourth Amendment. First, courts will determine if the police officer used excessive force.[7] If so, courts will then ask if the officer should have known his or her conduct was illegal because it violated a “clearly established” prior court ruling that barred the conduct.[8]  To answer this question, courts use a fair warning standard, meaning that precedent must provide the officer with “fair warning” that his or her conduct crossed a Constitutional line.[9] 

Advocates for reforming or ending qualified immunity are raising cases that demonstrate the contemporary problems with the doctrine. However, the Supreme Court does not seem receptive to hearing new arguments on the issue, and recently denied certiorari for several cases involving qualified immunity.[10]

This blog examines qualified immunity through two recently rejected cases that discuss qualified immunity in the context of the Fourth Amendment. Part II uses Baxter v. Bracey to question how similar the facts of a case must be for a law to be clearly established. Part III explores Corbitt v. Vickers and the burden of proof in qualified immunity cases. Part IV discusses the shortcomings of qualified immunity and the judicial criticisms of the doctrine. Part V concludes with a recommendation that the Supreme Court reexamine and reform the qualified immunity doctrine.

II. Background on Baxter v. Bracey

A serious criticism of qualified immunity asserts that if the fact pattern of the alleged violation does not fit the facts of another case in that jurisdiction exactly, the officers will not be held to be “on notice” that their conduct violated constitutional principles.[11] The Petitioner in Baxter was a homeless man who was allegedly trying to steal electronics from unlocked homes.[12]  Several police officers responded to the burglary report and pursued Baxter into a basement of an unlocked home. After several warnings, Baxter surrendered by sitting down with his hands up in the air. While surrounded by police, one of the officers apparently released a dog to attack him.[13] Baxter sustained a bite in the armpit and was taken to the hospital for emergency treatment.[14]

 Baxter sued the officers for failure to prevent excessive force in violation of the Fourth Amendment.[15] After the evidence was examined by two judicial panels, the court decided that qualified immunity applied to the officers and granted the defendants’ motion for summary judgment.[16] The court compared Baxter to another plaintiff that was attacked by a police dog while he was lying on the ground. The court reasoned that because the prior case only found unlawful police action when the plaintiff was lying on the ground, sitting on the ground with his hands raised was different enough to be distinguishable.[17] The court declared that the police officer was not put on notice that a canine apprehension would be unlawful in the present situation since the cases were distinguishable.[18] Therefore, the court found justification for blocking the suit and granting the police officers qualified immunity.[19]

III.  Background on Corbitt v. Vickers

Another criticism of qualified immunity is the inconsistent application of which party carries the burden of proof.[20] In Corbitt, at least six officers were pursuing a suspect when the pursuit ended in the petitioner’s yard.[21] The children playing in the Corbitt’s yard were ordered to lay on the ground at gunpoint while the unarmed suspect was apprehended.[22] The family dog entered the yard, apparently not hostile to the officers. An officer shot at the dog twice and missed both times.[23] The second bullet penetrated through a ten-year-old’s leg, leaving him with severe physical and psychological injuries.[24]

The injured child’s mother sued the police officer for violating her son’s Fourth and Fourteenth Amendment rights.[25] The court initially denied the officer’s motion to dismiss, determining that qualified immunity was not applicable in this situation.[26] However, the 11th Circuit Court of Appeals reversed the district court on an interlocutory appeal by determining that the mother did not meet the high burden to overcome qualified immunity.[27] Since a case with similar facts did not exist, the mother needed to show “actual facts demonstrating that every objectively reasonable officer in [respondent’s] shoes would necessarily perceive a total lack of reason to subdue a dog roaming freely at the scene of an active arrest.”[28] The court then characterized the mother’s assertion that the dog was non-threatening as conclusory, granted the officer qualified immunity, and dismissed the case.[29]

IV. Discussion of Qualified Immunity

 Baxter and Corbitt illustrate the complexities of qualified immunity that result in severe limitations for plaintiffs to bring cases against police officers. In both cases, qualified immunity “had the effect of blocking allegations that sometimes seem outlandish because the Supreme Court has required that there be a prior case similar enough to put the officer on notice that their conduct violates constitutional principles.”[30]

The Supreme Court should revisit qualified immunity to address the problems the doctrine has created. At best, qualified immunity is overreaching and covers situations the doctrine was not originally meant to apply to. Critics of the doctrine declare that qualified immunity is dysfunctional, inconsistent, and confusing. Courts remain divided on what degree of factual similarity must exist for the law to be clearly established.[31] Courts also struggle with whether the plaintiff must plead facts to overcome a qualified immunity defense, or if the defendant should be required to prove it as an affirmative defense. [32] The confusion is illustrated in both Baxter and Corbitt, where two panels were given the same facts and produced different answers on whether the unconstitutionality of the officers’ actions was clearly established.

Several Justices have spoken up about the troubling trends seen with qualified immunity. Most recently, Justice Thomas dissented from the Court’s decision to deny certiorari in Baxter v. Bracey.[33] In his analysis, Justice Thomas notes that no defenses or immunities existed in the language of 42 U. S. C. § 1983.[34] Furthermore, he determined that there is likely no objective basis for qualified immunity because no leading treatises or case law supported a “clearly established law test” until the 1980s.[35] Justice Thomas concluded with strong doubts about the 1983 immunity doctrine, noting that he would have granted certiorari in this case.[36]

Judicial criticism of qualified immunity has not just come from the conservative side of the bench. Justice Sotomayor has been a vocal leader in advocating for reforming the doctrine. She has criticized qualified immunity as being an “absolute shield” for law enforcement officers.[37] Justice Sotomayor highlighted the unequal treatment given to qualified immunity cases depending on which party is bringing the complaint:

We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’” than does the erroneous denial of summary judgment in such cases.

V. Conclusion

Given the recent events surrounding racial inequality and social justice in 2020, reexamining the criminal legal system is more important than ever. Reforming or even disregarding qualified immunity represents a large and important step in the progression towards justice. Constricting qualified immunity would not mean that every plaintiff with a frivolous lawsuit could advance to trial. Rather, reexamining the qualified immunity would smooth the conflicting and muddled contours of the doctrine.  The Supreme Court is likely to see many more petitions asking for a review of qualified immunity as more and more time and resources are spent litigating the inconsistencies of the doctrine.  Although the Court has many significant issues to consider, the importance of qualified immunity demands immediate attention. 

[1] Jordan S. Rubin, et al.,, Bloomberg Law (June 5, 2020).

[2] Pierson v. Ray, 386 U.S. 547, (1967).

[3] Id. at 552.

[4] Id. at 550.

[5] Id. at 548 (The statute is now codified as 42 U. S. C. § 1983).  

[6] Id. at 557.

[7] Nina Totenberg, Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits, (June 15, 2020).

[8] Id.

[9] Id.

[10] Id.

[11]. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

[12] Id. at 4.

[13] Id. at 6.

[14] Id. 

[15] Id.

[16] Baxter at 5.

[17]Id. at 8.

[18] Id.

[19] Id.

[20] Brief for Petitioner at 12, No. 17-15566 (11th Cir. July 10, 2019).

[21] Id. at 6.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 8.

[26] Id.

[27] Id. at 9.

[28] Id. at 10.

[29] Id.

[30] Jordan S. Rubin, et al.,, Bloomberg Law (June 5, 2020).

[31] Baxter at 9 (quoting Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018)).

[32] Corbitt at 3.

[33] Baxter v. Bracey, 140 S. Ct. 1862 (2020).

[34] Baxter at 2.

[35] Id. at 4.

[36] Id. at 6.

[37] Marcia Coyle, At Supreme Court, Sotomayor Is Leading Voice Against Alleged Police Abuses, (June 3, 2020).

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