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Supreme Court Won’t Review Police Immunity Doctrine

Oct. 5, 2020, 2:31 PM

The U.S. Supreme Court declined to review several cases involving the qualified immunity rule that shields law enforcement and other government officials from civil liability for alleged rights violations.

It’s the latest instance of the justices declining to examine the issue, as police violence and liability are in the national spotlight following the death of George Floyd in May and months of protests calling for overhauls of police departments nationwide.

The high court declined at the end of last term to take on the issue, rejecting review of several cases in June whose accumulation prior to that point had raised speculation whether the justices might revisit the judge-made doctrine.

Under the doctrine, officials can receive immunity from suit if their alleged actions weren’t “clearly established” violations of constitutional rights. That’s had the effect of keeping serious claims out of court, so long as the specific factual allegations at issue hadn’t previously been found by a court to be unlawful.

Critics have characterized that rationale as a Catch-22, in which the lack of such judicial determinations becomes the basis for not making them.

There are still other pending petitions that raise the immunity issue, but the justices declined to review the following cases on Monday:

  • No. 19-926 Davis v. Ermold involves Kim Davis, the Kentucky county clerk who famously refused to issue marriage licenses to same-sex couples. The justices won’t review her appeal challenging the relatively rare denial of immunity from civil liability for a government official. Justices Clarence Thomas and Samuel Alito issued a statement in connection with the denial criticizing the high court’s 2015 marriage equality decision in Obergefell v. Hodges.
  • No. 19-872 Hinson v. Bias involves Matthew Reid Hinson’s appeal challenging his blocked suit against officers who beat him in the course of arresting him for murder.
  • No. 19-1067 Browder v. Nehad, is an appeal from a San Diego officer who was denied qualified immunity after shooting and killing an “incoherent” man who had a knife and had threatened to kill people. The total time from the officer’s arrival to the time he fired his weapon was 33 seconds.
  • No. 19-1370 Thames v. Westland, involves the arrest of an anti-abortion protester who was arrested for threatening to bomb an abortion clinic. Kimberly Thames challenged the grant of qualified immunity to law enforcement who arrested her. She was praying on the sidewalk outside of the Michigan clinic, when she allegedly said, “I prophesy bombs are going to fall and they’re going to fall in the near future” and “bombs, bombs on America, and bombs will blow up this building.”
  • No. 19-1416 Fijalkowski v. Wheeler asked the justices to “revisit its qualified immunity doctrine, which stands in derogation of over three hundred years of Western political theory and contributes to a culture of American law enforcement that tolerates and facilitates police misconduct.” Mateusz Fijalkowski walked into a pool while suffering a mental health breakdown in Fairfax, Virginia, but officers did not permit the lifeguard to retrieve him until two and a half minutes had passed, he said in his petition. He was eventually revived with a defibrillator.
  • No. 20-43 Reich v. City of Elizabethtown, a police-shooting case, called into question the district court’s striking the affidavit of Amanda Reich from the summary judgment record and then using the absence of that affidavit to conclude that there was no genuine dispute of fact material to the government’s claim of qualified immunity for shooting and killing her mentally ill fiancé.

The cases are Davis v. Ermold, U.S., No. 19-926, Hinson v. Bias, U.S., No. 19-872, Browder v. Nehad, U.S., No. 19-1067, Thames v. City of Westland, Michigan, U.S., No. 19-1370, Fijalkowski v. Wheeler, U.S., No. 19-1416, Reich v. City of Elizabethtown, U.S., No. 20-43.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com

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