Questionable Qualified Immunity And The Supreme Court’s Chance To Fix It

June 3, 2020

Ian Millhiser for Vox gives us a backgrounder on qualified immunity which shields law enforcement from suits over even the most egregious of conduct. As the Supreme Court put it in Malley v. Briggs (1986), qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Millhiser notes that the premise of qualified immunity as defined by SCOTUS is to ensure government officials can do their jobs without the threat of a lawsuit looming over them. He writes, “These are not frivolous concerns. Qualified immunity applies broadly to government officials, not simply to police officers. So, in a world without qualified immunity, religious conservatives could harass civil rights officials with lawsuits to discourage those officials from enforcing laws prohibiting anti-LGBTQ discrimination. Koch Industries could bombard EPA officials with lawsuits discouraging them from enforcing environmental laws. And as the Supreme Court lurches right, government employees could not be certain that their actions would be upheld by the justices — even if existing precedents clearly establish that those actions are lawful. Public employees could face financial ruin every time the Supreme Court overruled a precedent. Yet whatever the wisdom of providing some lawsuit immunity to most public employees, most government officials do not have guns.”

Orion de Nevers explains in Slate that reforming qualified immunity would represent an important step toward holding law enforcement accountable for abuse of power. “Holding both the employee and the employer responsible is good policy: It ensures victims are fully compensated, incentivizes employees to discharge their duties with care, and incentivizes employers to promote safe business practices. But when it comes to law enforcement misconduct, municipalities do not have the same legal responsibility to ensure their employees abide by the Constitution. This is because of a 1978 Supreme Court case called Monell v. Department of Social Services of the City of New York. In Monell, the court held that municipal employers cannot be held responsible for the unconstitutional actions of their employees through the principle of respondeat superior. Instead, under Monell, cities are responsible for their employees’ deprivations of constitutional rights only when the employee acts through an official government policy or custom. The Monell standard creates serious injustice. Cities are not likely to have official policies condoning law enforcement misconduct. So, to hold a city responsible, a victim must prove the misconduct was so regular as to become a de facto city policy. This bar is impossible to clear in most cases; where the burden can be met, the damage will already have been done.”

“An ideologically diverse coalition of elected officials and legal and political advocacy groups want the Supreme Court to revisit qualified immunity and limit it, or get rid of it altogether. The justices have already declined to hear a handful of qualified immunity cases this term — one case involved police in Fresno, California, who were granted immunity despite allegations that they stole hundreds of thousands of dollars in cash and rare coins when they executed a search warrant.” But, as Zoe Tillman with Buzzfeed reports, SCOTUS still has ample opportunity to take on this doctrine, with 10 cases that deal with qualified immunity still in the queue for justices to consider taking up.

Are Supreme Court justices mere umpires in robes as CHIEF JUSTICE JOHN ROBERTS has said? That they “don’t make the rules” but simply “apply them”? Leah Litman and Tonja Jacobi argue in The New York Times that Roberts has indeed made the rules — especially during the most recent May session of remote oral arguments. And in the application of those rules Roberts has revealed his own ideological and gender biases. “The justices promise to be neutral, but the fact is that they are human with real human biases that affect their decisions. Oral arguments are just another occasion where that comes through.”