Justice Clarence Thomas issued a six-page dissent, calling on his colleagues to revisit the protections and expressing “strong doubts” about the court’s approach to qualified immunity.
The doctrine, created by the Supreme Court decades ago, allows civil suits only when it can be shown that an official’s actions violated a “clearly established” statutory or constitutional right. When determining whether the right was clearly established, courts consider whether a reasonable official would have known that the actions were a violation.
In practice, the “clearly established” test often means that for their lawsuits to proceed, civil rights plaintiffs must identify a nearly identical violation that has been recognized by the Supreme Court or appellate courts in the same jurisdiction.
Floyd’s death in Minneapolis on May 25 amplified calls for the court — and Congress — to act. Changing qualified immunity is part of the House Democrats’ policing reform legislation, and some senators have called for action as well. President Trump has opposed those efforts.
“The Supreme Court’s deeply disappointing decision today to punt on the critical issue of official immunity, in this time of national reckoning over police violence, places the ball squarely in Congress’s court,” David Cole, national legal director for the ACLU, said in a statement Monday.
“We have seen the deadly consequences play out on the streets, and black Americans have largely paid the price,” he added.
But the court’s qualified-immunity decisions have raised concerns among lawyers and academics for years. An extraordinary coalition of organizations on the left, right and middle — one federal judge called it “perhaps the most diverse amici ever assembled” — has called on the court to revisit the issue.
And so have two members of the court who represent its opposite ideological wings — Thomas and Justice Sonia Sotomayor.
Thomas, citing leading conservative academics, questioned in 2017 whether the doctrine was properly grounded in common law and the Constitution.
Sotomayor, who did not sign on to Thomas’s dissent Monday, has frequently dissented when her colleagues have granted or upheld qualified immunity in excessive-force cases, and said the doctrine has grown from protecting officials from harassing lawsuits into something else.
The court “routinely displays an unflinching willingness” to reverse lower courts that do not give an officer qualified immunity, “but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases,” she wrote. “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers.”
Legal scholars have criticized the court for what they say is a rewrite of an important civil rights law meant to ensure that federal courts provide protection to all Americans.
The law is now known to lawyers as Section 1983 of the U.S. Code, and imposes liability on officials who use their positions to deprive anyone of “any rights, privileges or immunities secured by the Constitution.”
There is no exception in the law for police. But beginning in the 1980s, the Supreme Court began providing some immunity for officials, saying that the rights violation must be “clearly established” for a lawsuit to proceed.
This was intended to provide some “breathing room” for police in tense situations making decisions in the moment, the court said.