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The End of Qualified Immunity?

6/18/20

By: Christopher S. Lee

Since its genesis in Pierson v. Ray, the qualified immunity doctrine has never been shy of critics. If you were to talk to the late Justice William Douglas (the lone dissenter in Pierson) about the growing movement striving to abolish immunity at the forefront of American jurisprudence today, it is hard to imagine that he would be at all surprised. The remaining eight justices in Pierson would tell you how qualified immunity is a pinnacle of public service and that a “policeman’s lot should not be so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.” Pierson v. Ray 386 U.S. 547 (1967). Yet, the intensity of the debates involving the qualified immunity doctrine has arguably reached its apex, and as of May 15, 2020, there were thirteen cert petitions pending in the United States Supreme Court urging the Court to reconsider the doctrine of qualified immunity. In light of the social movement sweeping the globe in relation to civilian-police relations, could this be the end of the road for qualified immunity?

The Supreme Court’s recent activity related to these thirteen cert petitions is instructive. Over the last few years, public interest groups, scholars, and lower judges have, metaphorically speaking, made a quiet whisper (at least in contrast to the raucous roar of the present movement) to the Supreme Court to reconsider the doctrine of qualified immunity. As a number of cert petitions continued to roll into the Supreme Court challenging the doctrine of qualified immunity, the Court nonchalantly, yet repeatedly rescheduled the conferences for these cases. It is certainly uncommon in recent history for the Court relist important petitions before deciding to grant or deny in the way it has done with these qualified immunity cert petitions. Many scholars and policy analysts speculate that this suggests the Court had been delaying these early petitions so it could consider them alongside several other high-profile cases raising the same issue.

At the May 15, 2020 conference, the Supreme Court ruled on three of the thirteen cases (the other ten were rescheduled to a later conference) denying cert in all three cases without comment from any of the justices. It was a move that stunned critics of qualified immunity, as Kelsay v. Ernst and Jessop v. City of Fresno are two of the three cases that were denied cert, and importantly, involved fairly liberal applications of qualified immunity in comparison to the thirteen cert petitions pending before the Court. Would this suggest that the Court was leaning towards upholding the doctrine in its entirety? Displaying the unusual continued delay on ruling on these cert petitions, the Court again delayed consideration of its qualified immunity docket on May 21, 2020, then again on June 4, 2020. It is hard not to believe that the tragic deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, and the social movements their deaths have fueled, have played a role in these delays and been weighing heavily in the minds of the justices. Also, what about the push from the legislative branch and bipartisan legislation that was presented to Congress earlier this month calling for “The End of Qualified Immunity?” Would not this be running in their minds as well?

It appeared to be a golden opportunity for the Court to steal the spotlight and exercise its inherent authority to weigh in the issue. Yet on the morning of June 15, 2020, the Supreme Court denied all of the remaining cert petitions raising the question of whether qualified immunity should be reconsidered; Justice Clarence Thomas was the only justice who expressed any desire to grant the cert petitions. Thus, the issue will not be heard in the Court’s term this October.

It is not entirely clear what motivated the Court to deny the petitions in the overwhelming fashion that it did. Citing to their prior criticisms of the doctrine, many anticipated that Justices Gorsuch, Sotomayor, and Ginsberg would also have been motivated to granted cert. It is impossible to know what is motivating the justices in their collective decision.  One hypothesis is that the Supreme Court, having seen the growing sentiment in Congress to pass legislation limiting and/or eliminating qualified immunity, decided to let the issue be resolved by the legislature. Perhaps the Court does not wish to further weigh into an issue that at its very core alleges the judiciary of having been too involved in policymaking in the first place.

With the judiciary out of the equation at least for the time being, all eyes will now turn to the remaining two branches of government. The sentiment around the oval office and chatter amongst advisors close to President Trump is that the president is unenthusiastic about legislation proposing to abolish qualified immunity. While proponents of qualified immunity unanimously view the rejection of the qualified immunity petitions as a win, we will nonetheless continue to monitor the activity of Congress and the ongoing debate as to qualified immunity in American jurisprudence.  If Congress does not act now, qualified immunity will likely be at the forefront during the Court’s next term.   

If you have questions or would like more information, please contact Christopher Lee at [email protected].