As Justice Thomas is quick to point out, “The text of § 1983 makes no mention of defenses or immunities.”
Sparked by the shocking killing of George Floyd while in police custody, protestors across the world have taken to the streets to assail the lack of accountability for law enforcement. This is why, on June 15, 2020, when the Supreme Court of the United States issued a groundbreaking opinion expanding Title VII protections to LGBTQ individuals, one of the most powerful signals to come from the Court was its refusal to hear an appeal in Baxter v. Bracey, a case concerning the breadth of “qualified immunity” for police.
In 2014, a neighbor called the police on Alexander Baxter for allegedly burglarizing a nearby home. When the police responded, Baxter fled the scene. Eventually, when he was confronted by law enforcement officers from a special canine unit, he surrendered and put his hands in the air; nevertheless, he contends, an officer released the canine, who proceeded to bite Baxter. Eventually, Baxter sued the two officers—the first, for excessive use of force; the second, for failure to intervene. In the district court, the judge denied the officers’ defense of “qualified immunity,” a doctrine developed over time that offers law enforcement officers protection from personal liability for claims arising under, among other things, 42 U.S.C. § 1983. The Court of Appeals for the Sixth Circuit reversed the lower court’s decision, ruling that whether or not the officers’ use of force was constitutional, it did not violate a “clearly established right.”
Baxter filed a petition for writ of certiorari, asking the Supreme Court to take up the case and revisit the doctrine of qualified immunity. The parties (as well as amici curiae) briefed the issues last year.
The Supreme Court’s Denial of Certiorari—and Justice Thomas’ Dissent
On Monday, June 15, the Supreme Court denied the petition (like it did many others), stating simply, “The petition for a writ of certiorari is denied.” Although the Court did not have much to say about its decision decline review, Supreme Court Justice Clarence Thomas did; in his dissent from the denial of certiorari, Justice Thomas explains why, “[g]iven the importance of this question,” he would have granted the petition for certiorari so that the Court could reflect on the justifications underlying the qualified immunity doctrine.
In his dissenting opinion, Justice Thomas—both a self-described “textualist” and the only black jurist on the Supreme Court—describes how, in the aftermath of the Civil War, Congress enacted what is now known as § 1983, which “gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights.” As Justice Thomas is quick to point out, “The text of § 1983 makes no mention of defenses or immunities.” During the 20th century, Justice Thomas writes, the Court came to recognize two immunities applicable to § 1983: (1) absolute immunity for legislators; and (2) a qualified defense of “good faith and probable cause,” which would protect police officers sued for unconstitutional arrests and detention. But these defenses were, at least initially, “confined to certain circumstances based on specific analogies to the common law” in existence when the law was originally written. Marking a swift departure from the limited nature of these defenses, Justice Thomas writes, the Supreme Court set off applying the doctrine of qualified immunity to a wide range of cases and “dispensed entirely with context-specific analysis[.]”
According to Justice Thomas, the Supreme Court’s qualified immunity analysis is no longer, as it may once have been, “[g]rounded in the common-law backdrop against which Congress enacted [§ 1983].” For this reason, Justice Thomas writes, it is time for the Court to revisit the scope of the qualified immunity doctrine, something it had the opportunity to do―and should have done―in Baxter v. Bracey.
Though he did not state as much in his opinion, it would be reasonable to assume that the events of recent weeks—shining a light on allegations of police misconduct and a lack of meaningful recourse for victims—helped solidify the “great importance” of the question at hand for Justice Thomas. Indeed, the doctrine of qualified immunity—and, perhaps more importantly, how federal courts are to apply the doctrine in § 1983 cases—will play a significant role in the adjudication of civil rights cases stemming from alleged police misconduct, potentially including those that may be filed by the families of those whose names we have unfortunately become so familiar with: Ahmaud Arbery, Breonna Taylor, George Floyd and many others. For now, though, the doctrine of qualified immunity’s applicability in cases alleging excessive use of force by law enforcement will remain in its current form, undisturbed by Supreme Court review.
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