An End in Sight for Qualified Immunity?

Jay Schweikert

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 resolutiFor the last several years, Cato 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 decide to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright.on 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 eight 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 eight different petitions that have been distributed for the May 15th conference. In nearly all 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, 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 and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt 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 cases 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 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.

• Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is the only one 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 not violate clearly established law.

The fact that the Court sent all eight 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.