For the last several years, the Cato Institute has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people's constitutional rights. The most immediate practical goal of this campaign has been to convince the Supreme Court to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright. And over the last seven months, I've written several times about how the Court has indicated that it's preparing to consider several qualified immunity cases, given the manner in which it has repeatedly rescheduled several cert petitions that have been fully briefed and ready for resolution since October of last year. My hypothesis at the time was that the Supreme Court was delaying resolution of these petitions so that it could consider them along with several other high-profile cases that also raised the same underlying question of whether qualified immunity should be reconsidered.

Now it would seem that prediction has been vindicated. Just today, the Supreme Court distributed thirteen different qualified immunity cert petitions for its conference of May 15, 2020. This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.

Here's the complete list of the thirteen different petitions that have been distributed for the May 15th conference. In most of these cases, Cato filed an amicus brief in support of the petition, and in many of them, we either helped coordinate or took the lead on a "cross-ideological brief,” on behalf of a diverse alliance of organizations opposed to qualified immunity.

Baxter v. Bracey.  In this case, the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether "the judge-made doctrine of qualified immunity" should "be narrowed or abolished." Cato filed a brief in support of the petition, and we also helped to coordinate the filing of a cross-ideological brief. This case was originally set to be considered all the way back on October 1, 2019, but it has been rescheduled five times since then. Now, it looks like the Court is finally prepared to resolve Mr. Baxter's petition.

Brennan v. Dawson.  In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man's home at 8:00pm; turned the lights and sirens on for over an hour; circled the man's house five to ten times, peering into and knocking on windows; and wrapped the home's security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of "clearly established law." The cert petition in this case was filed on January 11, 2019, and asks the Court to "reign in the qualified immunity standard to … reflect the common-law roots of qualified immunity."

Zadeh v. Robinson.  In this case, the Fifth Circuit granted immunity to state investigators who entered a doctor's office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.

Corbitt v. Vickers.  This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn't posing any threat. The plaintiffs in both Zadeh and Corbitt are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks "[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity." Cato submitted briefs in both cases, this time taking the lead on the cross-ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.

Kelsay v. Ernst.  This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to "get back here." The MacArthur Justice Center filed a cert petition on November 26, 2019. While the petition doesn't ask the Court to reconsider qualified immunity outright, it does ask the Court to "take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983." Cato filed a brief in support of this petition as well.

West v. Winfield.  In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman's home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given. On January 16, 2020, the Institute for Justice filed a cert petition asking the Court to clarify and limit the scope of qualified immunity, and Cato filed a brief in support of this petition.

Jessop v. City of Fresno.  In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that while "the theft [of] personal property by police officers sworn to uphold the law" may be "morally wrong," the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of "whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment." Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.

Mason v. Faul.  In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion-to-dismiss or summary-judgment stage. At trial, the jury found that while Officer Faul's shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity. The cert petition was filed on November 14, 2019, and it asks the Court to address the "confusion and uncertainty" in qualified immunity case law.

Cooper v. Flaig.  In this case, the Fifth Circuit granted immunity to officers who killed an unarmed man in his parents' home by tasing him nine times while he was having an acute mental-health episode. The cert petition was filed on February 5, 2020, and it explicitly asks whether the Court should "eliminate or significantly revise the judicially created doctrine of qualified immunity."

Anderson v. City of Minneapolis.  In this case, the Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19-year-old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life-saving medical assistance. The cert petition was filed on November 18, 2019, and it asks the Court to clarify the standards for determining "clearly established law," especially in the context of the state-created danger doctrine.

Clarkston v. White.  In this case, the Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school's CEO about disciplinary practices. The cert petition was filed on March 3, 2020, and it asks the Court to clarify that qualified immunity should not apply when a constitutional right is clearly established and the only uncertainty in the case law is whether a particular individual can be sued for its violation.

Hunter v. Cole.  Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, which I discussed here. On December 9, 2019, the officer filed a cert petition, asking the Court to hold that his shooting of the teenage boy did not violate clearly established law.

Davis v. Ermold.  The one other case in which the lower court denied immunity involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples in the wake of the Supreme Court's landmark decision in Obergefell v. Hodges. Those couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity to Davis, finding that the plaintiffs had sufficiently alleged that she violated their clearly established constitutional rights. Davis's cert petition was filed on January 22, 2020.

The fact that the Court sent all thirteen of these cases to conference on the same day — especially after repeatedly rescheduling many of them — is unmistakable evidence that the Justices are looking closely at the fundamental question of whether qualified immunity itself needs to be reconsidered. This is a question that Justice Thomas urged the Court to take up all the way back in 2017, and which Cato has been vigorously pushing since it launched its qualified campaign back in March of 2018. It is far past time for the Supreme Court to reconsider qualified immunity, and in less than three weeks, we'll finally know whether the Court is prepared to take up that question.

The table around which the Supreme Court justices gather for conferences might groan Friday beneath the weight of cert petitions — requests for the court to accept 11 cases arising from lower court decisions involving plaintiffs seeking redress for violations of their civil rights. In 10 of the cases — in all but one, the government defendants were in law enforcement — the civil rights claims were dismissed because courts granted the defendants qualified immunity. In one case the courts denied immunity.

The Supreme Court's consideration of this avalanche of petitions suggests that the court is reconsidering its mistake in creating qualified immunity. This doctrine has essentially nullified accountability for law enforcement and other government officers, even in cases where violations of constitutional rights are indisputable. Friday's cases include:

• A police officer, eager to administer an alcohol breath test to a man on misdemeanor probation, parked his patrol car in front of the man's house with its siren roaring for over an hour, covered the house's security camera with tape and repeatedly circled the house, knocking on windows. A lower court held that this warrantless invasion violated the Fourth Amendment but granted the rogue officer immunity from civil liability because no "clearly established law" forbade his behavior. Meaning there were minor factual differences between this case and prior cases in the circuit.

• A court granted immunity to officers who stole $225,000 in cash and rare coins while executing a search warrant because this behavior was not covered by any previous decision, involving virtually identical facts and circumstances, within that court's circuit. Because of trivial factual distinctions from earlier cases, a court granted immunity to a deputy sheriff who, while repeatedly attempting to shoot a pet dog that posed no threat, shot a 10-year-old child lying on the ground. For similar reasons a court granted immunity to officers who used tasers — nine times, and fatally — on an unarmed man having an acute mental-health episode, although this petition has been rescheduled for later consideration.

• A court granted immunity to state investigators who, without notice or a warrant, entered a doctor's office and searched the medical records of 16 patients. Again immunity was justified by there being no "clearly established law." A dissenting judge noted that qualified immunity amounts to "unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave" in a distinctively egregious way.

The Supreme Court's conference table might splinter beneath the weight of public records of hundreds of comparably appalling episodes that raise questions of qualified immunity. Since 1982, this doctrine has become a major impediment to the protection of constitutional rights because of three inappropriate words.

In the 1871 Ku Klux Klan Act, Congress said that government officials who violate a citizen's constitutional rights "shall be liable to the party injured." In 1967, however, the court began subverting Congress's clear intent by diluting the right to civil remedies. In 1982, the court almost nullified the right by holding that the official's conduct must be measured against — here are the three words — "clearly established law."

This was in no meaningful sense an "interpretation" of the 1871 statute. In effect, law is "clearly established" only regarding single instances, hence it is hardly law. Trivial factual distinctions between indisputably unconstitutional behavior in case A and such behavior in a prior case B in the same circuit can mean that the official in case A has immunity even though the violation of a plaintiff's rights is clear.

Perversely, the more gross the unconstitutional behavior is, the harder it is to persuade courts to deny immunity, because what the perpetrator did does not precisely fit the fact pattern of any prior case. In its past 30 cases, the Supreme Court, applying its "clearly established law" doctrine, has denied immunity only twice.

Clark Neily and Jay Schweikert of the Cato Institute's Project on Criminal Justice, joined by amicus (friend of the court) briefs representing an astonishing ideological diversity, have helped to bring qualified immunity's consequences to the attention of the court that, in creating it, also created "a culture of near-zero accountability for law enforcement." Its victims include not just those whose civil rights have been violated, but the overwhelming majority of law-abiding law enforcement officers and other public officials who are tainted by the unpunished unconstitutional behavior of a few. On Friday, the court can serve civil rights and law enforcement by deciding to rethink the mistakes it made regarding qualified immunity.

The U.S. Supreme Court rejected three separate appeals involving the controversial doctrine of "qualified immunity," which shields government officials from liability for alleged rights violations—even egregious ones.

Advocates across the political spectrum have been clamoring for the court to curtail or even eliminate the doctrine that they say too often deprives civil rights plaintiffs of the ability to challenge abusive behavior by police and other public officials.

Officials can receive immunity from suit if their alleged actions weren’t "clearly established" violations of constitutional rights. That's had the effect of keeping even the most seemingly outlandish conduct out of court, so long as the specific factual allegations at issue hadn't previously been found by a court to be unlawful.

Monday's denials in three unrelated cases—from Nebraska, California, and Louisiana—show that the justices aren't ready to take on the issue. Not yet, anyway. At least 10 other petitions on the subject are pending on the high court's docket.

The justices were initially set to consider 13 qualified immunity appeals at their private conference on Friday, including these three now declined. That raised speculation as to whether the court might be eyeing one or more of the petitions as a vehicle for taking up the doctrine that's been criticized not just by lawyers and academics, but even by some of the lower court judges bound to apply it.

Yet the court only wound up considering these three cases at the conference, putting the others on hold and, in turn, causing further confusion and speculation about its qualified immunity plans.

Thursday's Conference

The rejection of these three cases doesn't make those plans clearer. After the denials, the justices put the remaining petitions back on for consideration at this Thursday's conference, so the next chapter in the high court's qualified immunity saga could be published by the court in an orders list next week.

Jay Schweikert of the Cato Institute deemed the denials "definitely a disappointment," pointing to what he called the "especially egregious applications of qualified immunity" in two of the cases. In the Nebraska matter, a police officer received qualified immunity despite allegedly body-slamming a small woman who walked away from him during an interview.

In the California case, officers allegedly stole $225,000 in cash and rare coins while executing a search warrant.

In successfully opposing high court review, the Nebraska officer observed in his brief to the justices that, "for more than 30 years, the Court has repeatedly emphasized that the objective reasonableness of a particular use of force by law enforcement must consider the totality of the facts within the perception of the officer at the scene."

He said he seized the woman in a "bear hug" and "brought her to the grass after she physically obstructed police operations, proceeded to move toward a person involved in a heated altercation with one of her family members, and ignored" the officer's commands.

In fending off the California appeal, those officials told the justices that no theft took place, and that calls from outside groups, including Cato, to eliminate or curtail qualified immunity "should provide no support for review of this case."

Despite the closely-watched nature of the issue, none of the three denials prompted separate statements from any of the justices, including Justices Sonia Sotomayor and Clarence Thomas, who have suggested that the court further examine the issue.

Powder Dry

That could show that some members of the court are keeping their powder dry for one or more of the still-pending petitions, or it could simply reinforce the court's lack of interest in taking up the issue for whatever reason.

As an example of the high court's thinking on the subject, in a 2017 ruling, the justices cautioned against second-guessing law enforcement actions in a police-shooting case.

Advocates are disappointed that the justices won't second-guess their approach to qualified immunity in any of the cases declined on Monday.

While conceding that the doctrine "protects government officials' innocent mistakes from harassing litigation," New Civil Liberties Alliance senior litigation counsel Michael P. DeGrandis said the California case "shows us how easily bad people can pervert qualified immunity in a way that deprives us of our civil rights."

Still, some qualified immunity critics see hope on the docket.

Schweikert added that "the fact that the justices denied these petitions doesn't necessarily mean they aren't still interested in revisiting qualified immunity." He noted the 10 outstanding petitions that were taken out of consideration from the justices' last conference.

Among those petitions, he said, are ones that "raise the fundamental question of whether the doctrine should be reconsidered entirely." Their rescheduling could "indicate that the Justices are more interested in addressing this larger question, rather than taking a narrower approach," Schweikert said.

But even if the court takes up one or more of the remaining petitions, it's unlikely that a "seismic shift is in the offing" when it comes to the immunity doctrine, said Kent Scheidegger, of the Criminal Justice Legal Foundation, who has filed many briefs over the years supporting the government at the high court in various cases.

"This is a well-established body of law," he said, and, unlike constitutional doctrine, "it is one that Congress could change any time if it wanted to."

The cases are Kelsay v. Ernst, U.S., No. 19-682, review denied 5/18/20; Jessop v. City of Fresno, U.S., No. 19-1021, review denied 5/18/20; and Clarkston v. White, U.S., No. 19-1093, review denied 5/18/20.

The U.S. Supreme Court declined to take on several cases involving the controversial "qualified immunity" rule that shields public officials, including law enforcers, from being answerable in court for even the most egregious allegations of rights violations.

Advocates across the political spectrum, including lawyers, academics, and judges bound to apply qualified immunity have sharply criticized it, though the justices have for years balked at calls to upend or refine it.

The rejection, Monday, of a host of cases all at once, with only a one-case dissent from Justice Clarence Thomas—after they'd spurned three others on May 18—shows the justices have virtually no desire to revisit the issue any time soon, putting the ball in Congress' court to pass legislation dealing with the issue if it so chooses.

The court's latest refusal to reconsider the doctrine comes as police violence and accountability has gripped the nation, following the death of George Floyd in Minnesota on May 25 at the knee of a city police officer, murder charges against that officer, and government agents across the country using force against unarmed citizens protesting the status quo.

Under the doctrine, officials can receive immunity from suit if their alleged actions weren't "clearly established" violations of constitutional rights. That's had the effect of keeping serious claims out of court, so long as the specific factual allegations at issue hadn't previously been found by a court to be unlawful.

Critics have characterized that rationale as a Catch-22, in which the lack of such judicial determinations becomes the basis for not making them.

The doctrine was created by the Supreme Court, leading advocates to call on the justices to undo it. In keeping with its usual practice, the high court didn't explain why it denied review of the petitions. It takes four justices to grant review.

'Dereliction of duty'

The Cato Institute's Jay Schweikert, a fierce opponent of the doctrine who worked on some of the appeals seeking to take it down, called the rejections "a shocking dereliction of duty."

While it's "impossible to know for sure what motivated the Court to deny all of these petitions," he said "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."

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for crime victims and has frequently sided with the government at the high court in criminal matters, said after the denials that, "Given that qualified immunity is a matter of statutory interpretation and amendment of the statute is under active consideration in Congress, I think it is prudent for the Court to leave it alone for now."

A unanimous high court said in a 2009 case that the doctrine "balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."

On Monday afternoon, House Judiciary Committee Chair Jerrold Nadler (D-NY), Congressional Black Caucus Chair Karen Bass (D-CA), and Subcommittee on the Constitution, Civil Rights, and Civil Liberties Chair Steve Cohen (D-TN) said the high court's failure to act makes it more important for Congress to do so.

The representatives cited the proposed Justice in Policing Act of 2020, which they said "makes clear that qualified immunity cannot be used as a defense in civil rights suits against federal, state, or local law enforcement officers."

It's "long past time," they added, "to remove this arbitrary and unlawful barrier and to ensure police are held accountable when they violate the constitutional rights of the people whom they are meant to serve."

'Appears to stray'

In the denial from which Thomas dissented on Monday, involving Alexander Baxter's civil rights suit out of Tennessee, the justice said he continues to have "strong doubts about" the doctrine.

In Thomas' view, qualified immunity "appears to stray" from the text of the law that gives people the right to sue government officials in the first place.

• Here's what happened in Baxter's case and the others from across the country whose appeals were declined:

After surrendering to police, Baxter told the justices in this petition, he was bitten by a police dog while sitting with his hands in the air. But even though a prior precedent deemed nearly identical conduct unlawful, a federal appeals court granted immunity to the officials in his case. He argued that made his case "an archetypal example of the problems with current qualified immunity doctrine."

• Immunity also blocked Joshua Brennan's civil rights suit from Michigan, against an officer who went to his house to administer a portable alcohol breath test while Brennan was on probation and subject to random testing. The officer circled the house several times while banging on doors and windows, obscured a security camera with police tape, circled the house several more times while again banging on doors and windows, and "all the while peering into those windows and otherwise causing a nuisance on the property," Brennan said in his petition.

• Another case stemmed from a civil rights suit by a Texas doctor. At the urging of the U.S. Drug Enforcement Administration, Texas medical board officials executed a "no-notice administrative subpoena" on Joseph Zadeh's medical offices, demanding "immediate production of significant quantities of confidential patient medical information, including intensely private patient records concerning mental health issues and domestic relationships," he told the high court. The board obtained the information by threatening to revoke Zadeh's medical license, he told the justices in his petition calling on the high court to "recalibrate or reverse the doctrine of qualified immunity."

• The justices also declined to hear a civil rights suit by a Georgia parent whose 10-year-old son was shot by police in pursuit of a criminal suspect. Officers chased the suspect into Amy Corbitt's yard. Six children including her son were playing there. Officers ordered the children at gunpoint to lie face-down on the ground. The children complied and the unarmed suspect complied with the officers too. But Officer Michael Vickers fired his gun twice at Corbitt's pet dog. He missed twice. But the second time, he shot Corbitt's son in the back of the knee while he was still lying face down, seriously injuring him, Corbitt recounted in her petition.

• The justices also declined to hear an Idaho suit that asked if an officer who has consent to "get inside" a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point case law. As recounted in Shaniz West's petition, she gave law enforcement consent to enter her home to search for a fugitive whom they incorrectly thought was inside. "Instead of entering the home," she said, "the officers decided to spend hours besieging it, during which time they (among other things) repeatedly fired tear-gas grenades into the house from the outside."

• The high court likewise passed on the suit filed by Brenda Mason and Billy C. Mason individually and on behalf of their deceased son, Quamaine Dwayne Mason. Responding to a 911 call, Lafayatte, La., police officer Martin Faul first released his service dog on 21-year-old Quamaine and almost instantaneously shot at Quamaine Mason eight times, hitting him seven times, the Masons recounted in their petition. A jury found Faul's conduct unreasonable but he was still deemed immune from suit for his actions.

• The justices also declined to hear an appeal challenging immunity for Minneapolis municipal employees who, responding to a 911 call, found 19-year-old college student Jacob Anderson suffering from hypothermia and declared him dead when they failed to detect a pulse in violation of treatment protocols, preventing further aid that may have saved his life, according to the petition filed by his father, William.

• Also among the denied petitions was a rare one that actually involved the denial of law enforcement immunity. The justices declined to review police officers' petition in which they argued that "clearly established law" didn't require them to "shout a warning and wait to determine whether an imminent threat to life has subsided after the warning" before one of them could fire to stop an armed person from moving a firearm in the officer's direction.

There are technically petitions still pending before the justices on the subject, but they aren't seen as good candidates for review. In one of them, the justices didn't even ask for a response to the petition, which would have been a signal that they're potentially interested in hearing the case.

The cases are Baxter v. Bracey, U.S., No. 18-1287; Brennan v. Dawson, U.S., No. 18-913 and Dawson v. Brennan, U.S., No. 18-1078; Zadeh v. Robinson, U.S., No. 19-676; Corbitt v. Vickers, U.S., No. 19-679; West v. Winfield, U.S., No. 19-899; Mason v. Faul, U.S., No. 19-7790; Anderson v. City of Minneapolis, U.S., No. 19-656; and Hunter v. Cole, U.S., No. 19-753.

• Wikepedia, "Qualified immunity," https://en.wikipedia.org/wiki/Qualified_immunity.
  
  
• Russ Buettner and Susanne Craig, "Retiring as a Judge, Trump’s Sister Ends Court Inquiry Into Her Role in Tax Dodges," The New York Times, April 10, 2019, https://www.nytimes.com/2019/04/10/us/maryanne-trump-barry-misconduct-inquiry.html, accessed 10/13/2019.