The Supreme Court’s Dereliction of Duty on Qualified Immunity

JAY SCHWEIKERT, CATO INSTITUTE

This morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively.

There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten‐​year‐​old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by laying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up.

Justice Thomas was the only member of the Court who would have granted any of the petitions. He dissented in the Baxter case, writing that “[b]ecause our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.” It’s especially disappointing that Justice Gorsuch didn’t join this dissent, as he has otherwise demonstrated himself to be a principled advocate of textualism and originalism, and also willing to reconsider misguided precedent. And it’s surprising that Justice Sotomayor had nothing to say regarding these cases, given her previous comments in a dissent (joined by Justice Ginsburg) noting that qualified immunity had become an “absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth Amendment.” Perhaps one or more of these Justices will agree to hear some future case. But for now, Justice Thomas stands alone.

In the tumultuous wake of George Floyd’s brutal death at the hands of Minneapolis police, this development could not come at a worse time. The senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while this culture has many complex causes, one of the most significant is qualified immunity. By effectively rewriting and undermining the civil rights law that was supposed to be our primary means of holding public officials accountable, the Supreme Court shares a huge portion of the blame for our present crisis.

It’s impossible to know for sure what motivated the Court to deny all of these petitions. But one possibility is that the Justices were looking closely at developments in Congress—where members of both the House and the Senate have introduced bills that would abolish qualified immunity—and decided to duck the question, hoping to pressure Congress to fix the Court’s mess. It is certainly encouraging that so many legislators have finally turned their attention to qualified immunity. But the mere fact that Congress can fix this mess doesn’t absolve the Supreme Court of its obligation to fix what it broke—the Court conjured qualified immunity out of nothing in the first place, and the Justices had both the authority and responsibility to correct their own blunders, no matter what happens in the legislature.

Qualified immunity will go down in history as one of the Supreme Court’s most egregious, costly, and embarrassing mistakes. None of the Justices on the Court today were responsible for creating this doctrine, but they all had a responsibility to fix it—and except for Justice Thomas, they all shirked that responsibility. It is now all the more urgent that Congress move forward on this issue and ensure that all public officials—especially members of law enforcement—are held accountable for their misconduct.


Jay Schweikert is a policy analyst with the Cato Institute’s Project on Criminal Justice. His research and advocacy focuses on accountability for prosecutors and law enforcement, plea bargaining, Sixth Amendment trial rights, and the provision and structuring of indigent defense. Before joining Cato, Jay spent four years doing civil and criminal litigation at Williams & Connolly LLP. He holds a J.D. from Harvard Law School, where he was an Articles Editor for the Harvard Law Review, and chaired the Harvard Federalist Society’s student colloquium program. Following law school, Jay clerked for Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. He holds a B.A. in political science and economics from Yale University.


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