Chemerinsky: SCOTUS continues to hold the line on qualified immunity
Erwin Chemerinsky. Photo by Jim Block.
Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps this will help fuel pressure on Congress to enact a law to revise qualified immunity, but so far such efforts have passed the House of Representatives and stalled in the Senate.
Some background
All government officers who are sued for money damages can raise an immunity defense. Although 42 U.S.C. § 1983 is written in the language of strict liability, authorizing recovery against any person acting under color of law who violates the Constitution or federal laws, the Supreme Court created immunity as a defense. Some government officials—such as judges for their judicial acts, prosecutors for their prosecutorial acts, and legislators for their legislative acts—have absolute immunity to suits for money damages. All government officials who do not have absolute immunity have qualified immunity.
The Supreme Court has said that an officer performing discretionary functions is protected by qualified immunity unless he or she violates clearly established law that every reasonable officer should know. In District of Columbia v. Wesby in 2018, the court explained: “In other words, existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
The court stressed that the law has to be clear that the specific conduct of the officer is unlawful: “The ‘clearly established’ standard also requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’”
Many on both the right and the left of the political spectrum have sharply criticized the Supreme Court’s qualified immunity jurisprudence as making it enormously difficult for victims of constitutional violations to recover for their injuries. Donald Trump appointee Judge Don Willett of the New Orleans-based 5th U.S. Circuit Court of appeals wrote of his “disquiet over the kudzu-like creep of the modern immunity regime.”
He wrote: “Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.”
In November 2020, in Taylor v. Riojas, the Supreme Court rejected qualified immunity, and this led to speculation that the court was responding to its critics by lessening the bar to recovery by plaintiffs. That case involved a prisoner who had been placed in horrific conditions, but the lower courts found that the prison officials were protected by qualified immunity because of the absence of a case on point with virtually identical facts. The court, in a 7-1 decision, reversed and stressed that there does not need to be a case on point and that officers can be held liable so long as they have “fair warning” that their conduct is unconstitutional.
The decisions of Oct. 18
The two recent decisions indicate that the speculation about an overall shift in approach to qualified immunity by the court was unfounded. Both cases involved claims against police officers for excessive force. In each, the court reversed a federal court of appeals and found qualified immunity, stressing the absence of a case with sufficiently similar facts.
In Rivas-Villegas v. Cortesluna, police in Union City, California, responded to a domestic violence call. Ramon Cortesluna, the suspect, came out of the house and was shot twice with beanbag rounds by the police when he put his hands down after being told not to do so. An officer had seen a knife in Cortesluna’s pocket. Officer Daniel Rivas-Villegas then pushed Cortesluna to the ground and pressed his knee against his back so a colleague could handcuff him.
Cortesluna sued the officers for excessive force. The federal district court concluded the force used by both officers was reasonable and that the officers were entitled to qualified immunity. The San Francisco-based 9th U.S. Circuit Court of Appeals found that the firing of the shots was protected by qualified immunity, but that it was excessive force for a police officer to press his knee into the back of a suspect lying face down on the ground, hard enough to cause an injury.
The Supreme Court unanimously reversed in a per curiam opinion and concluded the officer was protected from liability by qualified immunity. The court stressed the absence of a case with sufficiently similar facts.
The court declared: “Even assuming that controlling circuit precedent clearly establishes law for purposes of Section 1983, [prior precedent] did not give fair notice to Rivas-Villegas. He is thus entitled to qualified immunity.” The court said, “although ‘this court’s caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.’”
It is notable that the justices once more noted that they had not yet decided whether anything other than a Supreme Court decision can create clearly established law. Also, the court says that there does not need to be a case “directly on point,” but then finds qualified immunity because no prior decision had sufficiently similar facts.
The other decision on Oct. 18, City of Tahlequah v. Bond, also arose in a domestic violence situation. Police in Tahlequah, Oklahoma, were called by a woman to remove her ex-husband, Dominic Rollice, from her home. The police confronted Rollice in a garage. While talking to the police, Rollice picked up a hammer. When Rollice disobeyed the police order to drop the hammer, police shot and killed him.
Rollice’s estate sued the police for excessive force. The federal district court ruled in favor of the officers, but Denver-based 10th U.S. Circuit Court of Appeals reversed. The 10th Circuit found both that the police used excessive force and that they were not protected by qualified immunity.
The Supreme Court again reversed in a per curiam opinion.
Once more, the court stressed the absence of a case with sufficiently similar facts. It stated: “Not one of the decisions relied upon by the court of appeals … comes close to establishing that the officers’ conduct was unlawful.” The court concluded its decision by declaring: “Neither the panel majority nor the respondent have identified a single precedent finding a Fourth Amendment violation under similar circumstances. The officers were thus entitled to qualified immunity.”
The implications
It is notable that both of these decisions were unanimous and that the justices saw them as sufficiently clear as to not even need briefing and oral argument. At the very least, they show that in police excessive force cases, the court insists that there be a case with very similar facts or the officers must be deemed to be protected by qualified immunity. There is a high hurdle for plaintiffs seeking to recovery for claims of excessive use of force by the police.
This surely disappoints those who thought that the court might be shifting its approach to qualified immunity after the protests against police violence following the death of George Floyd and in the face of significant criticism of its jurisprudence in this area. Because qualified immunity is based on the court’s interpretation of a statute, Section 1983, Congress could change this. The House of Representatives, in both 2020 and 2021, has passed the George Floyd Justice in Policing Act that, among other things, would change the standard for qualified immunity. So far, though, it has been blocked in the Senate, and passage seems unlikely in the foreseeable future.
See also:
ABAJournal.com: “In 2 summary reversals, Supreme Court rules for officers who kneed and shot suspects”
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
