The U.S. Supreme Court interprets the law, we are told. But sometimes, the court makes the law. One of those times—more than 50 years ago—is now part of today's national controversy over police accountability following the death of George Floyd while in the custody of Minneapolis police.
The Justices have been urged to reconsider or overrule their judge-made doctrine known as qualified immunity. A series of petitions for review pending in the court challenge the underpinnings of the doctrine, and a number of cross-ideological organizations are telling the Justices that it is long past time to correct a doctrine that too often shields police misconduct.
The doctrine bars civil lawsuits against government officials, including state and local police, when they violate someone’s constitutional rights-- unless their actions violated a “clearly established” constitutional or statutory right. It is meant to balance two important interests: the need to hold government officials accountable for their misconduct and to shield them from harassment and liability when they act reasonably.
Consider Trent Taylor's petition, one of the nearly dozen now pending in the Supreme Court. Taylor was put in a cell in a prison psychiatric unit for mental health treatment. The cell's walls, sink, and faucet were covered in human waste from a prior prisoner. Taylor complained but lived there for more than three days when he was moved to another cell, this one with no sink, toilet or bed, only a clogged drain in the floor. He slept on the floor "in a pool of overflowing sewage," according to his petition.
Taylor sued the prison officers for alleged violation of his Eighth Amendment rights to be free from cruel and unusual punishment. Taylor's lawsuit was barred and the prison officers, according to the lower federal courts, were entitled to qualified immunity because the right not to be subjected to such conditions for “so short” a period as six days was not clearly established.
The Supreme Court has said that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
Our right to sue government officials for violating our constitutional rights can be traced to the Civil Rights Act of 1871 and what is known today as "Section 1983" of that act in the U.S. Code. Section 1983 makes liable "every person" who under color of law deprives a person of his or her civil rights. The 1871 act, also known as the Ku Klux Klan Act, was enacted by the Reconstruction-era Congress to protect the rights of freed slaves after the Civil War.
The Supreme Court created the doctrine of qualified immunity in a 1967 decision in the case Pierson v. Ray. A group of white and black clergymen on a prayer pilgrimage to promote racial integration tried to use a segregated interstate bus terminal waiting room in Jackson, Mississippi, in 1961. They were arrested and charged with breaching the peace. They were convicted by a municipal police justice but succeeded on their appeal. The group subsequently brought a Section 1983 suit against the municipal police justice for false arrest and imprisonment.
When the case got to the Supreme Court, Chief Justice Earl Warren, writing for the court, said that it was well-established in common law that the tort of false arrest allowed a defense of good faith and probable cause, and Congress did not intend to abolish that defense when it enacted Section 1983.
"The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one," wrote Warren. "Their claim is, rather, that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid."
Since 1967, the Supreme Court, in a number of decisions, has broadened this immunity for police and other government officials to a point where Justice Sonia Sotomayor has criticized the court for its "one-sided" approach" that "transforms the doctrine into an absolute shield for law enforcement officers." One scholarly study of the Justices' application of the qualified immunity test from 1982 through 2017 reported that of 30 qualified immunity cases, the court actually found official conduct to violate "clearly established" law only twice.
The Justices announced the "clearly established law" standard in 1982 and they, as well as the lower courts, have struggled repeatedly to clarify what it means. In a general sense, it means the law at the time of the violation wasn't sufficiently clear to hold the violator liable.
The petitions challenging the qualified immunity doctrine argue that the Justices in 1967 were wrong on the historical, common law roots of the doctrine. Common law, they contend, did not recognize the immunity that the court began applying in that year. Instead, a strict rule of personal official liability was a fixture of the Founding era.
These opponents also argue that because the doctrine defeats Section 1983 claims even when the Constitution has been violated, it erodes the force of constitutional rights. And in practice, police officers, they add, almost never are at risk of paying money damages because of near-universal indemnification by their government employers.
The Justices may soon decide whether to take one of the pending petitions that asks them head-on to reconsider or abolish the doctrine. Several members of Congress also intend to draft legislation to eliminate the doctrine. Whatever the court or Congress decide to do, this fight over a doctrine that many Americans likely are discovering for the first time is now fully engaged.
Editor's Note:
On June 15, 2020, the Court declined to hear eight cases related to qualified immunity questions. Justice Clarence Thomas dissented in a case, Baxter v. Bracey, saying, " I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this question, I would grant the petition for certiorari."
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
