The idea behind qualified immunity is that government officials are shielded by it. They can’t be held personally liable to pay monetary damages if they violate the Constitution. So, as long as the government official did not violate what the doctrine calls “clearly established” law, you can’t collect money from that government official if you’ve been the victim of excessive police force, for example.
Monday, the Supreme Court issued two summary rulings in favor of police in cases where the lower courts had denied the police requests for qualified immunity. A summary ruling means that the Court isn’t going to hear the case — it issues its final decision. The two summary rulings had no dissenting opinions.
One case was a review of an Oklahoma decision, the other a review of a California decision. The former was about a police officer shooting a man who had a hammer, while the latter was about an officer putting his knee into the back of a suspect he had just handcuffed.
In both cases, the Court’s decision was that the officers "plainly did not violate any clearly established law" and are, contrary to what the lower courts said in both cases, entitled to qualified immunity.
So, what’s the deal here?
In 2020, Reuters published a groundbreaking report on qualified immunity and how the Supreme Court’s “continual refinement of an obscure legal doctrine has made it harder to hold police accountable when accused of using excessive force.”
Some argue that this doctrine, designed as a shield, has become a sword empowering police misdeeds. While the Supreme Court clearly does not agree, as evidenced by yesterday’s decisions, the data cited by Reuters point to a different conclusion.
There is a two part-test that appellate courts use to determine whether to grant immunity to police accused of using excessive force.
Part one: The Court looks at whether the Fourth Amendment was violated by excessive use of police force. If the answer is no, qualified immunity if granted. If yes, the Court goes to part two.
Part two: The Court looks at whether the police should have known that there is clear legal precedent that their actions violated the Fourth Amendment. If the answer is no, qualified immunity is granted. If yes, we go to trial.
The rub, as Reuters reported, is that “since 2009, the Supreme Court has allowed appellate courts to skip part one. Courts have increasingly chosen this option.”
Reuters examined how the test was applied in 252 cases from 2017 to 2019. It found that there was a marked shift in how courts ruled, favoring police in 57 percent of cases from 2015-2017, as compared with 2005-2007, where in 44 percent of cases the Court favored police.
The most significant challenge for plaintiffs in these cases is the Supreme Court’s ongoing narrow view of the term “clearly established” as it relates to the behavior of police violating clearly established precedent. And that’s why these rulings matter, because we saw more of the same in these two cases.
In Monday’s California decision, the Court said that the Ninth Circuit was wrong in saying that it is “clearly established” that police officers aren’t allowed to put their knee into the back of someone on the ground, handcuffed. They differentiated the facts of this case with those of an earlier qualified immunity case, and on that distinction (and inadequate notice being given to the officer) granted the police officer qualified immunity.
While those who tend to support the notion of qualified immunity argue that restricting it can limit the ability of police to do their jobs, the risk here is that the further the Supreme Court moves towards strengthening the doctrine in practice, it becomes less of a shield and more of a sword. When the Supreme Court finds that qualified immunity does not apply, it simply means that the case can move forward, not that the police officers are guilty. Therefore, the more the Court applies the doctrine, the more it potentially empowers unchecked police action.
Aron Solomon, JD, is the chief legal analyst for Esquire Digital and the editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.