This morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively.
There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decisiongranting immunity to a police officer who shot a ten‐year‐old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by lying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up.