U.S. Supreme Court Won’t Review Qualified Immunity Doctrine, For Now

By Mark Walsh — June 15, 2020 2 min read
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The U.S. Supreme Court on Monday declined to take up any of nine appeals that called for a fundamental re-examination of qualified immunity—the doctrine which can shield police officers and educators from liability when they are sued for alleged violations of federal rights.

The doctrine has received scrutiny in recent weeks as one possible area for police reform after the death of George Floyd in police custody and the nationwide protests against racism and police misconduct.

As some proposed bills in Congress would curtail qualified immunity for police officers or a wider array of government officials, including educators, the Supreme Court was coincidentally weighing whether to take up the nine appeals that called for rethinking the doctrine.

As Education Week reported last week, any fundamental changes to qualified immunity by Congress or the Supreme Court could affect the doctrine as it applies to school resource officers, teachers, administrators, and school board members.

Officials may raise a defense of qualified immunity when they are personally sued for allegedly violating a person’s federal civil rights under a statute known as Section 1983. Courts typically grant immunity as long as the official’s conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.

But for now, it appears the court does not wish take on the issue. It denied review in the nine cases with brief orders, eight of which had no recorded dissent.

In the 9th case, Baxter v. Bracey (No. 18-1287), Justice Clarence Thomas wrote a lone dissent from the denial of review, saying, “I continue to have strong doubts about our Section 1983 qualified immunity doctrine.”

He reiterated views he had expressed in a 2017 opinion that qualified immunity as it exists today was not grounded in the text of Section 1983 or in the common-law immunities that were available at the time that law was adopted as the Civil Rights Act of 1871.

Two other members of the court, Justices Sonia Sotomayor and Ruth Bader Ginsburg, have written or joined an opinion recently expressing concerns about how the court tends to side with police officers on qualified immunity issues.

The court appeared to be engaged in some internal debate in recent weeks about whether to take up any of the pending appeals. But for now, any changes in qualified immunity will be up to Congress.

A version of this news article first appeared in The School Law Blog.