The next big Supreme Court shift might not be abortion or guns

Qualified immunity, a doctrine the Supreme Court created in 1967, bewilders ordinary citizens who run headlong into it after government officials trample their constitutional rights. In plain English, the doctrine often blocks lawsuits against officials unless a prior court decision “clearly established” that the specific conduct at issue violated the Constitution. That standard leaves many victims without a remedy and lets many constitutional wrongs go unanswered.

That is not right. The Constitution exists to protect individual rights, not to insulate officials who violate them from accountability.

Recent years have also supplied fresh reasons to question the doctrine’s scope. Abuses tied to the weaponization of law enforcement and the criminal justice system have come to light with unsettling regularity. Think of Crossfire Hurricane, where senior officials used a discredited dossier — commissioned by Hillary Clinton’s campaign and funded through political channels — to pursue surveillance warrants and to monitor an opposing campaign before and after the 2016 election.

Or consider Arctic Frost, the childishly named operation (Arctic Frost is a type of orange, as in “Orange Man Bad”) that targeted hundreds of Americans, including one of the co-authors (Eastman) and relied on sweeping demands for private communications and records in search of a predicate offense in hopes of derailing President Trump’s 2024 campaign.

Episodes like these, and others, zero in on a basic question: When government power crosses constitutional lines, who answers for it?

Now the Supreme Court appears to be taking an unusual look at the doctrine — at least if its recent handling of three qualified immunity petitions offers any clue. What’s different this time

In prior years, the court has frequently disposed of qualified immunity petitions quickly, sometimes through summary action with no explanation. This term looks different. Three cases involving qualified immunity have sat on the court’s docket far longer than the usual pattern would suggest. The justices have repeatedly requested responses and, in several instances, called for lower-court records. The court has also rescheduled cases for conference after conference without issuing a decision.

That process does not prove the court plans to revisit the doctrine. But it does suggest heightened attention.

The petition for writ of certiorari in Smith v. Scott was filed nearly a year ago. The case arises from a tragic encounter that began as a call for help. A 65-year-old man contacted police because he believed intruders lurked outside his apartment. Officers arrived, found no intruders, and then attempted to handcuff him. The encounter escalated. Officers restrained him on the ground, and an officer allegedly applied pressure that impeded his breathing until he died.

Both the district court and the Ninth Circuit denied qualified immunity. The officers then asked the Supreme Court to intervene. The respondent (Scott’s estate) initially waived a response, which commonly happens in cert-stage litigation. The court did not let the waiver stand. It called for a response after the case’s first conference last May. After a later conference, the court requested the record. Since then, it has repeatedly relisted the petition — an astounding 13 times — without resolving it.

Zorn v. Linton involves a protest at the Vermont State House. Demonstrators occupied the chamber floor to protest government policy. Most left when the building closed. Shela Linton stayed and refused to leave. Officers removed her using a rear wristlock. She sued, alleging unreasonable force that caused pain, injury, and trauma.

The district court granted qualified immunity. The Second Circuit reversed and denied qualified immunity. The petition reached the Supreme Court in September. Once again, the respondent waived a response, and once again the court requested one. The case then cycled through conference after conference before the court requested the lower-court record on February 27.

This case matters for another reason. Many qualified immunity disputes involve fast-moving encounters where officers make split-second judgments. This one involves an interaction with warnings, time, and repeated opportunities to comply. It tees up an issue courts often sidestep: the obligations citizens assume when they knowingly violate a lawful order and force officers to escalate to removal. Does a protester’s refusal to leave reduce the scope of what counts as “unreasonable” force, so long as officers use measured escalation? Put differently: Were Linton’s rights even violated?

Villarreal v. Alaniz sits at the intersection of qualified immunity and the First Amendment. Police arrested journalist Priscilla Villarreal under a state statute that barred solicitation of nonpublic information. The reporter argued that the arrest violated her First Amendment rights.

The procedural history highlights the doctrine’s power. The district court granted qualified immunity. A Fifth Circuit panel denied it. The full Fifth Circuit later granted it en banc. The Supreme Court vacated and remanded the decision for further consideration. The Fifth Circuit again granted immunity.

Judge Andrew Oldham, in a concurring opinion, made an observation that cuts to the heart of qualified immunity’s justification. Courts often defend the doctrine by pointing to the realities of policing: officers must act quickly, sometimes under threat, with incomplete information. Oldham questioned whether that rationale “makes sense” in a case involving time to find a statute, plan an arrest, consult counsel, and investigate facts. Under those circumstances, why should immunity hinge on whether a prior case matches the fact pattern with near-photographic precision?

The cert petition was filed last July. The Supreme Court requested a response in August. It later requested the record after multiple conferences. What the Supreme Court might do next

No outsider can know what the justices plan. But these three cases, taken together, give the Supreme Court a menu of options.

The court could reinforce qualified immunity, especially in excessive-force cases, and use the term’s docket to signal more protection for officers facing a rising tide of litigation.

The court could narrow qualified immunity — particularly in cases where officials have time to deliberate, plan, and consult — because the “split-second decision” rationale does not apply.

The court could also recalibrate the doctrine without overruling it: clarify what counts as “clearly established” law, tighten the inquiry, or distinguish between scenarios that demand rapid judgment and those that involve considered decisions.

In the abstract, “immunity from liability for violating rights” begins to resemble artificial judicial indemnification. Modern society does not grant that kind of blanket protection to most other professions. A surgeon, an engineer, or a corporate executive cannot avoid accountability because no prior case warned that the precise mistake at issue would cause harm. The law often holds them to general standards of care, not hyper-specific precedent.

Qualified immunity operates differently. It can turn constitutional protections into paper rights — recognized in theory, unavailable in practice.

Whatever the court’s destination, the road looks different this term. The extended consideration, repeated relists, and requests for records in multiple cases point to sustained attention. That alone marks a change.

If the court means to revisit qualified immunity, even in part, the consequences will ripple far beyond these three cases. Federal courts hear thousands of civil rights claims each year. The doctrine shapes whether citizens can vindicate constitutional rights at all.

At minimum, one conclusion now seems hard to avoid: The Supreme Court is looking closely. And when the court looks closely, doctrine can move significantly.

...What, as Lenin famously asked, is to be done?

Article V. The Convention of States. The Founders knew that in spite of their best efforts power would tend to centralize into the District of Corruption. So they put in a peaceful process for change.

When it was really needed, like the issue of slavery , both sides were afraid the other would win. War settled the matter and the Constitution got amended that way instead.

How about we skip another bloody Republican-Democrat War this time around and actually use Article V?

I've never understood how qualified immunity works. It's seemingly supposed to cover some situation that the public official could never have foreseen. Fair enough.

But that doesn't seem to be what it covers. For example, a police officer stole $60,000 from a suspect. You can't tell me that police officers don't know stealing is wrong.

I could see back in the 90's, a police officer finding a knife that was used in a stabbing in a bush in the park, then the courts ruling that he had to get a warrant because the homeless guy was living there. The police officer would legitimately not have thought of it as a house and gotten a warrant.

But that doesn’t seem to be what it covers. For example, a police officer stole $60,000 from a suspect. You can’t tell me that police officers don’t know stealing is wrong.

Qualified immunity does not cover direct theft. But it aids indirect theft using the legal system.

Police officers routinely take money from people using the forfeiture laws. The money often is used for police department purposes, so the officers have incentive to do so.

Officers often take guns or other property which may be caught up in some victimless illegality. The person the property was taken from has a strong incentive not to report it, because they might be prosecuted if they did.

Thanks for posting that. Glad to see some progress. Some states passed it but after the RATs seized power they backed out. Nevada , New Mexico , Delaware and Maryland. A liberal group, Common Cause, is the opposition. If it scares a group like them that is a good sign.

I've never understood how qualified immunity works.

It's fairly simple ... unless a court has previously declared the exact sequence of events in question a "violation of constitutional rights", public servants can get away with any crime including murder. Unless the victim happens to be a "preferred minority". It is a disgusting, evil mockery of Constitutional law.

Yeah. It's super simple for folks who chose to have a simplistic nihilistic view of all law enforcement, in every way.

In reality, its nothing like what NorthMountain described and isn't "simple".

Qualified Immunity is judicial policy that, at its core, allows law enforcement to exist. Without it, police cannot exist. It's meant to provide police with legal cover and flexibility to investigate and enforce laws. For instance, speeding to catch up to a drunk person driving dangerously, or allowing a cop to kick in someones door when they hear someone inside in danger. Qualified immunity will say that the police officer can't be sued or tried criminally for those acts deemed necessary but which fall with the scope of that exact moment or instance.

It has, however, been abused over the years and in many cases. Thats a fact. But reigning in that abuse is whats needed, not abolishing qualified immunity wholesale. If that is done, no cop will risk even writing an ordinance ticket for tall grass because they will be bankrupted by frivolous and continuous lawsuits.

By repeatedly relisting cases for conference, SCOTUS is telegraphing it intends to hear several cases at once to revisit qualified immunity, (QI). QI was expanded from a previous requirement of good faith action in the 1980s, and has become a license for public officials to be willfully ignorant of the law. So, for the ordinary citizen, ignorance of the law is no legal defense, but for public officials, they can be as ignorant as they want with no compensation for the injured citizen. It’s long past time that SCOTUS revisit the issue to preserve constitutional rights from our arrogant elitist managaerial class.

“Priscilla Villarreal”

“Villarreal had sought — and obtained from a police officer — the identities of a person who killed himself and a family involved in a car accident and published the information on Facebook. The arrest affidavit said she sought the information to gain Facebook followers.”

https://www.pbs.org/newshour/politics/supreme-court-rejects-appeal-from-online-citizen-journalist-over-her-arrest-in-texas

“It should be obvious that this arrest violated the First Amendment.”

Justice Sonia Sotomayor

I tend to agree with the “wise Latina”.

There’s no reason Texas government would need to keep the information secret.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.