After Taking A Couple Of Steps Towards Trimming Back Qualified Immunity, The Supreme Court Regresses To The Mean

from the continuing-to-redefine-'judgment-proof' dept

The Supreme Court spent decades making it all but impossible for citizens to successfully sue law enforcement officers for violating their rights. The Supreme Court created the doctrine of “qualified immunity” nearly 40 years ago and has spent most of the intervening years honing it into a nearly impenetrable shield for officers who violate rights.

But over the past year, the Supreme Court seemed to recognize it had perhaps placed too many limits on lower courts, leading them away from examining the case at hand and towards affirming QI defenses because no precedential case had identical facts: i.e., excessive force deployed at 6 pm on a Tuesday is completely different than excessive force deployed at 7 am on a Wednesday, etc. And if no previous facts aligned with the current facts, courts had no reason to examine the facts in front of them, steering them away from creating new precedent that would put officers on notice that violating rights on a Wednesday morning also wouldn’t be tolerated.

The past twelve months have been somewhat anomalous for the Supreme Court. It has reversed three appeals court decisions awarding qualified immunity. The three reversals were important. The Fifth Circuit was home to two of the reversals — a circuit notorious for its aggressive protection of law enforcement officers. But the lack of an official opinion suggests the Supreme Court is in no hurry to limit qualified immunity’s coverage.

The latest shadow docket release [PDF] from the Supreme Court contains two more unofficial orders on qualified immunity decisions. But these go the other way, reversing appellate decisions that stripped officers of their qualified immunity shield. (via Reason)

In one case (via the Ninth Circuit), police officers reporting to a call from two teens about their mother’s drunk ex-boyfriend menacing them in their home arrested Ramon Cortesluna. According to the arrestee, his rights were violated when Officer Daniel Rivas-Villegas knelt on his back with his knee while he was already face down on the ground. The Ninth Circuit said this was excessive force, citing another case where an unarmed arrestee was seriously injured when he was restrained face down by an officer’s knee.

The Supreme Court, however, says the Ninth Circuit’s cited precedent isn’t on point enough. The cited case dealt with an unarmed person and a noise complaint. This case deals with a man who had a knife on him and was allegedly trying to saw his way into a room where the two frightened teens who made the 911 call had barricaded themselves. The similarity is the knee to the back as a restraint method and the Supreme Court says that’s simply not enough.

The second rejection is headed back to the Tenth Circuit. In this case, a woman called the cops on her ex-husband, who was drunk and wandering around outside of her house. Officers arrived and followed the man into the garage, where the man grabbed a hammer and held it over his head, ignoring orders to drop the tool. When he refused, the officers on the scene shot and killed the man. The entire confrontation was captured on the officers’ body cameras.

The Tenth Circuit said no immunity because the officers’ decision to follow the man into the garage created the danger they responded to by killing him. The Supreme Court says the Tenth Circuit is wrong. Not only that, it says it shouldn’t even need to be having this discussion in the first place.

We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment. On this record, the officers plainly did not violate any clearly established law.

These may have been close cases — far from the seemingly clear violations of rights detailed in earlier reversals by the Supreme Court. But what’s said about these cases is alarming. Rather than build on previous reversals in which the Supreme Court said lower courts were far too specific in their determinations of what had be “previously established,” the Supreme Court rolls everything back, restating its mandate that cases on point are all that matters, not the egregiousness of the violation being discussed nor any determinations about what officers should “reasonably” be expected to know about the Constitution.

Worse, it makes it clear the Supreme Court is still solidly behind its own doctrine and wishes to shield as many officers as possible from additional fact-finding or actually being subjected to the apparent indignity of a jury. It seems the Supreme Court believes all lawsuits against law enforcement officers are frivolous until proven otherwise and that, at the very worst, government employees should only have to suffer through a couple of rounds of motions before walking away from allegations of rights violations.

Filed Under: , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “After Taking A Couple Of Steps Towards Trimming Back Qualified Immunity, The Supreme Court Regresses To The Mean”

Subscribe: RSS Leave a comment

This comment has been flagged by the community. Click here to show it.

Hyman Rosen (profile) says:

Qualified Immunity

Doing away with QI would let a million lawsuits bloom. Personal injury lawyers are salivating over the prospect. The knee-in-the-back case is pretty telling. I can just imagine every interaction where police have to restrain someone being placed under a microscope to be second-guessed by a judge and jury. QI isn’t applied too broadly when there are hordes who want to take down the police in any way possible.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:


Maybe the police should be taken down if they can’t do their jobs without violating someone’s civil rights or employing brutal violence for even the smallest offense. Qualified immunity is a shield from consequences⁠—and any defense of QI is a defense of letting cops trample on people…and their civil rights.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Re: Qualified Immunity

A man was boiled to death for having spread excrement in his cell. They put it under a microscope & decided no charges needed to be filed. Can you explain to the class how murdering someone by boiling is a justifiable response to the facts?

Perhaps the million lawsuits blooming would not bloom so much if the courts hadn’t ruled that forcing a woman on the side of the road to strip and have a body cavity search as others continued to drive by wasn’t a rights violation because no court had ruled that forcing a detainee to strip in public and allow opposite sex officers to check her vagina in full view of others wasn’t a clearly established right.

Perhaps providing blanket coverage to all the apples allows those few bad ones, they keep claiming are a small portion that they can’t manage to do anything about, violate peoples rights in larger & larger ways with impunity because protecting all cops means we have to protect the rapists, abusers, murderers who happen to have a badge.

Cops are often given a QI pass because they didn’t know the law they claimed to be enforcing, when is the last time a citizen was able to inform a court well I didn’t know that law so I get to walk away right?

But instead of seeing QI as something that is being abused as an insult to citizens you seem to care more that the "hordes" (read darkies) who want to take the police down in anyway possible.
Perhaps that says more about your inability to see people as anything other than a monolithic stereotype, rather than the hard work of judging people on their own actions & merits.

Policing is a difficult job because people demand more and more but at lower costs. The "few bad apples" can’t be rooted out because the Union contract allows them to put those found unfit to serve back on the job with backpay. We can’t have any rational discussion because the magical refrain of "not all cops" clouding the issue that some cops shouldn’t be cops & should be in jail. That the blue wall protects the image of cops, and also protects those cops who are the ones harming the image of cops by lying, cheating, stealing, raping, murdering.

Gee if only there were some sort of cameras officers could wear that could record the entire interaction, they would want to have one all the time they were on duty so that there was an unblinking record of what "really" happens & how they did nothing wrong. Instead some departments have wasted millions repairing these systems after they ‘magically’ get broken & fail then fail & magically get broken after they are repaired so that there is no possible record to challenge the officers narrative of why he had to shoot that young man in the head for having walked in the wrong park.

"second-guessed by a judge and jury"
Funny… thats actually how the legal system works for everyone else, why should cops be a protected group who can never be questioned? I mean its like you haven’t seen any of the footage from cell phones recording cops putting senior citizens in the hospital for DARING to exercise his right to peacefully protest.

But do go own…
Its fun watching people who think it never happens because it’s never happened to them or those they love… cause eventually your number will come up & you will be so very pissed that no one did anything to stop ot from reaching that point.
I’ll be there with a mirror laughing.

This comment has been deemed insightful by the community.
LLaww says:

Re: would let a million lawsuits bloom

… perhaps not.

Civil lawsuits against cops arise now mostly because government prosecutors and judges refuse to seriously prosecute ‘Criminal’ behavior by cops.
Victim citizens are then left the inadequate, difficult/expensive, and usually unsuccessful Civil lawsuit option to get any type of justice.

Everyone is supposedly equal under the law and Constitution, so LEO’s should rightly face the exact same ‘threats’ of potential lawsuits as you and me… and every other person jn America faces every day.
Many occupations closely interact with the public and are very vulnerable to random lawsuits; Cops ain’t above the laws that everybody else has to live under.

generally excessive, frivolous lawsuits in today’s America are entirely the fault of lax judges and a predatory legal profession.

This comment has been deemed insightful by the community.
Michael says:

Re: Qualified Immunity

You sound like one of those people who pretends to believe in "Small Government" while also giving carte blanche for government agents to act in any way they choose without oversight or accountability.

Those of us who actually believe in Small Government call people like you "bootlickers."

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Oh noes, the same legal risk as every other job out there...

If the current crop of police would be driven into the ground by facing the same threat of lawsuits that every other professions deals with then the takaway from that should be that they deserve to be shut down not ‘we need to keep shielding them from the consequences for their actions, actions which can and have had lethal results’.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Qualified Immunity

In this specific case the real problem is they simply can’t risk setting a precedent that police officers are not justified in using deadly force if they needlessly escalate a situation. Since you seem to see no problem with senseless deaths at the hands of government I guess I can understand why you would not want this precedent set. It encapsulates such a large portion of law enforcement shootings there absolutely would be a barrage of very justified lawsuits, several hundred a year likely. I’m not sure on what grounds you think the system can’t withstand an additional 500 or so trials spread across the 17,000 law enforcement agencies. If they quit killing so many fucking people we could always just skip the lawsuits and trials without the courts having to contort themselves to defend the blue line which is apparently comprised entirely of snowflakes and will melt with the slightest increase in scrutiny.

On a side note I really liked the cops blocking traffic protesting in NY today, or what their department refers to as rioting. I thought that police were the only thing standing between us and riots and the cops are out here rioting because they don’t want to comply with a public safety policy. Someone ought to kettle those thugs up.

This comment has been deemed insightful by the community.
Pixelation says:

"Officers arrived and followed the man into the garage, where the man grabbed a hammer and held it over his head…"

So, the cops get a call that a woman’s drunk ex-husband is wandering around her property. They show up and he goes into the garage. They follow him in. I’m not sure how this is a violation of his 4th amendment right. He was trespassing and they were in pursuit. What should they have done? "Sorry mam, he went into the garage and we can’t follow him to arrest him and make sure he doesn’t grab a weapon to come kill you. Have a nice night." "Hey Jimmy, do you think we should have called in the SWAT team?"

While I think QI is overly protective, it doesn’t stop people from suing the agency that the officers work for.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

If you read the rest of this sorry tale, one officer went for his taser to subdue the man but the other two drew weapons and fired…

If they had all decided to take a second and back up, they would have had more than enough time to a) talk to the guy and see if they could de-escalate (he had a hammer so giving him space would have been sensible) or b) decide he was aggressive and a risk so tase him and get the cuffs out

There was never any reason to exterminate this man because he was drink, in the wrong place and holding a hammer!

That One Guy (profile) says:

Murder by cops doesn't violate any law, who knew?

We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment. On this record, the officers plainly did not violate any clearly established law.

Now there’s a terrifying sentence if I ever saw one, it doesn’t matter if you create the situation where you can claim deadly force was ‘required’ it’s still not a violation of a person’s rights if you murder them once the situation is in play. Paired with the following sentence noting that murdering someone without cause apparently isn’t a violation of ‘clearly established law'(if you’re a cop anyway) and it’s pretty clear the the previous rulings were anomalies and the court is still solidly on the side of ‘police can do no wrong’.

Anonymous Coward says:

Re: Murder by cops doesn't violate any law, who knew?

It’s clearly wrong, but is it a fourth amendment violation in particular?

QI wouldn’t even be an issue if we didn’t have the even more insidious sovereign immunity making it impossible to sue them at the state level. In my world this would be a simple wrongful death case and not a constitutional one.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...