Supreme Court Declines to Hear Another Case Challenging Qualified Immunity for Police

March 8, 2021 Updated: March 8, 2021

The Supreme Court on Monday turned away another opportunity to review a widely debated legal doctrine—known as “qualified immunity”—that insulates police officers from civil liability for conduct required by the job.

The chance to review the Supreme Court-made doctrine was presented in a case where a Cleveland man sued two police officers who assaulted him while trying to enter his home in 2016. The officers, who wore plain clothes at the time, had mistaken the home as a vacant home in a high-crime neighborhood.

The high court denied a request (pdf) by the man, Shase Howse, to review the case after lower courts ruled in favor of the officers. The justices did not provide any comments to explain the decision in the case, which is cited as Shase Howse v. Thomas Hodous.

Howse, who was 20 at the time, said the officers approached him, told him that he was going to jail, and threw him on the ground during the incident. He said the officers then proceeded to assault him in the back of the neck. Howse maintains that he did “nothing illegal” and had “done nothing to threaten the officer.”

In his lawsuit, he alleged that the officers, who were sued in their individual and official capacities, had violated the Fourth Amendment’s prohibition against unreasonable seizure.

The district court ruled in favor of the two officers and a divided 6th Circuit Court affirmed the ruling. The majority on the appeals panel acknowledged Howse’s arguments but ruled that “qualified immunity” protected the officer’s conduct. In their analysis, the majority said that Howse’s attorneys failed to present a case where a court had ruled that an officer who acted under similar circumstances had violated the Fourth Amendment, in order to satisfy the doctrine’s “clearly established” rule.

“Without such a case, the plaintiff will almost always lose,” the judges wrote.

The full court of the 6th Circuit Court was also asked to review the case but declined to do so, prompting the appeal to the Supreme Court.

The qualified immunity doctrine insulates government officials from civil liability for conduct required by the job. It comes from the Supreme Court’s interpretation of 42 U.S.C. § 1983, commonly known as Section 1983, which provides a basis for people to sue state officials who violate a person’s constitutional rights.

The Supreme Court has said that it is not enough to show that the rights are violated. Victims must also show that the action was “clearly established,” and if they fail, the official could be granted qualified immunity. The “clearly established” rule, which is seen to be problematic by critics of the doctrine, requires the party suing the official to show that the facts in their case were sufficiently similar to the facts in prior court cases.

Qualified immunity reentered the public consciousness amid protests last summer against police violence following George Floyd’s death. The debate of whether the doctrine should still be upheld as sacrosanct has reached a crescendo in recent months, with lawmakers taking action to abolish the concept completely.

Critics say the doctrine prevents officials from facing consequences for misconduct or abuse of power if their actions violate the U.S. Constitution but do not contravene a “clearly established” rule.

Proponents say the doctrine is important to allow government officials such as police officers to carry out their jobs with protection from undue interference and threats of liability. They also say it prevents frivolous or retaliatory lawsuits against officers.

This comes after the Supreme Court declined to hear a series of cases at the end of the last term that presented the justices with opportunities to reconsider the qualified immunity doctrine.

The court’s decision wasn’t entirely unanimous, with Justice Clarence Thomas, who has previously criticized the doctrine, writing in a dissent in one of the cases, Baxter v. Bracey (pdf), that he would have granted the petition to review the case. The Baxter case involves officers who released a police dog on a suspect to arrest him. In the process, the dog bit the suspect. The suspect alleged that he had already surrendered when the dog was released to arrest him.

“I have previously expressed my doubts about our qualified immunity jurisprudence,” Thomas wrote in his dissent. “Because our Section 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”

In his dissent, Thomas also commented on the “clearly established” rule, arguing that “there likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe.”

“Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test. Indeed, the Court adopted the test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of competing values’ about litigation costs and efficiency,” he wrote.

Legal experts had previously told The Epoch Times that they believe qualified immunity has routinely shielded those who are either incompetent and who knowingly violate the law.

“Qualified immunity is a failure—it is a failure as a matter of policy, it is a failure as a matter of law, and it is a failure as a matter of basic morality,” Robert McNamara, senior attorney for the Institute for Justice, previously told The Epoch Times.

Meanwhile, former President Donald Trump’s administration, which has been open to police reform, has criticized calls to eliminate qualified immunity. Trump’s last Attorney General, William Barr, said that in situations in which an officer knowingly and willfully violates a well-established right, then it may be appropriate to hold the officer civilly liable. But he said qualified immunity is necessary to ensure police officers can do their job without fear.

“Qualified immunity provides breathing space for officers to do their job without fear that an inadvertent or unpredictable error will subject them to personal financial ruin,” Barr said in October last year. “Without qualified immunity, individual officers would be deterred from taking the kinds of risky steps that are absolutely necessary to protect the community.”

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