Recent U.S. Supreme Court Actions

In an order yesterday^[1], the United States Supreme Court denied certiorari in Baxter v. Bracey, No. 18-5102 (6th Cir. 2018).^[2] Baxter was a case on qualified immunity. Qualified immunity is defined as “[i]mmunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights.”^[3] Justice Thomas dissented from the denial stating, “I have previously expressed my doubts about our qualified immunity jurisprudence. See Ziglar v. Abbasi, 582 U. S. ___, ___–___ (2017) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2–6). Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”^[4] The issue of qualified immunity has received increased scrutiny recently because of the inability to hold police accountable for misconduct, particularly in regard to the use of excessive force.^[5]

Recent Proposed Legislation

Although the Supreme Court has declined to hear Baxter, the issue of qualified immunity is not dead. Congress still has the opportunity to take action. On June 3, Rep. Justin Amash (I-Mich.) and Rep. Ayanna Presley (D-Mass.) announced on Twitter that they would co-sponsor a bill to “eliminate qualified immunity and restore Americans’ ability to obtain relief when police officers violate their constitutionally secured rights.^[6] The bill currently has fifty-four co-sponsors.^[7] The Justice in Policing Act of 2020, a House bill led by Congressional Black Caucus members, limits qualified immunity.^[8]

Executive Branch Response

President Trump and Attorney General William Bar have expressed opposition to the reduction or elimination of qualified immunity in these legislative proposals. When asked “[d]o you think there should be some tweaking of the rules, reduced immunity to go after some of the bad cops?” by Margaret Brennan on Face the Nation, Attorney General William Bar responded “I don’t think you need to reduce immunity to- to go after the bad cops, because that would result certainly in police pulling back.”^[9] White House Press Secretary Kayleigh McEnany declared that qualified immunity was “a nonstarter in the Democrat legislation.”^[10] President Trump’s executive order signed today addresses police credentialing, information sharing, training, and grants to fund these but does not address qualified immunity.^[11]

Learn More

If you would like to read more on the legal doctrine in this context, below are some selected recent law review articles:

• Symposium, Qualified Immunity, 93 Notre Dame L. Rev. 1793 (2018)
  • Samuel L. Bray, Foreword: The Future of Qualified Immunity, 93 Notre Dame L. Rev. 1793 (2018).
  • Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018).
  • Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853 (2018).
  • Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 Notre Dame L. Rev. 1887 (2018).
  • Alan K. Chen, The Intractability of Qualified Immunity, 93 Notre Dame L. Rev. 1937 (2018).
  • John F. Preis, Qualified Immunity and Fault, 93 Notre Dame L. Rev. 1969 (2018).
  • Scott Michelman, The Branch Best Qualified to Abolish Immunity, 93 Notre Dame L. Rev. 1999 (2018).
  • David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison, 93 Notre Dame L. Rev. 2021 (2018).
  • Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065 (2018).
  • Fred O. Smith Jr., Formalism, Ferguson, and the Future of Qualified Immunity, 93 Notre Dame L. Rev. 2093 (2018).
• William Baud, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018)
• Jameson M. Fisher, Casenote, Shoot at Me Once: Shame on You! Shoot at Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders, 71 Mercer L. Rev. 1171 (2020).
• Allison Weiss, The Unqualified Mess of Qualified Immunity; A Doctrine Worth Overruling, 76 Wash. & Lee L. Rev. Online 113 (2020)
• Alexis Woolison, Casenote, Rodriguez v. Swartz: Civil Lawsuit Immunity in Border Shootings, 2 Immigr.Hum. Rts. L. Rev. art. 2, at 1 (2020).

Footnotes

1. Baxter v. Bracey, No. 18-1287, 590 U.S. ___ (2020). ↑
2. Baxter v. Bracey, No. 18-5102, 751 F. App’x 869 (6th Cir. Nov. 8, 2018), cert. den. (U.S. June 15, 2020).↑
3. Qualified Immunity, Black’s Law Dictionary(11th ed. 2019).↑
4. Baxter v. Bracey, No. 18-1287, 590 U.S. ___ (2020). ↑
5. See e.g., Andrew Chung et. al., Shielded: For Cops Who Kill, Special Supreme Court Protection, Reuters Investigates (May 8, 2020 Noon), https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/ [https://perma.cc/MU3C-7FUH]; Devin Dwyer, “Qualified Immunity” for Police Getting Fresh Look by Supreme Court after George Floyd Death, ABC News (June 4, 2020, 1:04 PM), https://abcnews.go.com/Politics/police-immunity-rule-fresh-supreme-court-george-floyd/story?id=71044230 [https://perma.cc/F9YD-TYL5]; Patrick Jaicomo & Anya Bidwell, Police Act Like Laws Don’t Apply to Them Because of ‘Qualified Immunity.’ They’re Right, USA Today (updated June 9, 2020, 2:36 PM), https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ [https://perma.cc/37KH-HHR4]; Nina Totenburg, Supreme Court Will Not Reexamine Doctrine That Shields Police in Misconduct Suits, NPR (June 15, 2020, 9:55 AM), https://www.npr.org/2020/06/15/876853817/supreme-court-will-not-re-examine-doctrine-that-shields-police-in-misconduct-sui [https://perma.cc/R6WH-V3XD]↑
6. Justin Amash (@justinamash), Twitter (June 3, 2020, 6:26 PM), https://twitter.com/justinamash/status/1268353415295500289 [https://web.archive.org/web/20200604015942/https://twitter.com/justinamash/status/1268353415295500289] ↑
7. H.R. 7085, 116th Cong. (as introduced, June 4, 2020). ↑
8. H.R. 7120, 116th Cong. § 106 (as introduced, June 8, 2020).↑
9. CBS News, Face the Nation (June 7, 2020), https://www.cbsnews.com/news/bill-barr-george-floyd-protests-blm-face-the-nation-transcript/ [https://perma.cc/E62G-XBEL]↑
10. Transcript of June 10, 2020 Press Briefing by Press Secretary Kayleigh McEnany, https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-kayleigh-mcenany-061020/ [https://perma.cc/6L8S-G2G3]↑
11. See, Exec. Order No. ____ (June 16, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-safe-policing-safe-communities/.↑