As you know, I am an attorney. That fact alone means that I have a grossly inflated sense of self. In other words, I sometimes tend to think that I am smarter than I really am. I know some you are thinking “I have read your articles and you, my friend, are not that bright to start with.” Well, I agree.

Now don’t get me wrong, I am not totally stupid. However, every now and then I misread the signs around me and make a bad decision or pick the wrong side.

For example, I picked Beta over VHS. I also went with the Zune over the iPod. And if that weren’t enough I also bet on the Blackberry over the iPhone. Apple apparently has it in for me.

Also, I have been known to make a mistake on how I think the courts are trending in regards to a particular legal issue. In fact, this happened to me very recently.

For those of you that actually read my articles (my wife, my parents and Kevin B.) you may recall that right before Covid kicked off I wrote an article titled Police Immunity. In the article, I discussed qualified immunity and how police officers have the legal right to a dismissal of civil suits seeking monetary damages arising from their official conduct unless the plaintiff can show that materially similar conduct has been found to be unconstitutional by a prior court.

In the article, I also discussed some specific cases addressing the issue and noted how several Justice Sotomayor and Justice Thomas had expressed concern that the doctrine had gone a bit too far. In support of that, I noted that Justice Sotamayor worried that the Court’s past cases addressing qualified immunity had created an “absolute shield for law enforcement officer.”

Based on these comments I stepped out on a limb and said that there may be some concern regarding this doctrine within the courts and it may signal a trend toward narrowing the immunity. And that, as they say, is where the wheels fell off.

As it often does, the universe decided to smack me down. The smack down came in the form of two recent U.S. Supreme Court decisions addressing qualified immunity.

Last month the U.S. Supreme Court handed down a couple of decisions that dealt a blow to any trend to try and rein in qualified immunity. Both cases dealt with claims of excessive force.

In Rivas-Villegas v. Cortesluna the police shot a man with bean bag rounds twice because he had a knife pointing up in his pockets. After the shooting, the police then kneeled on the man’s back. In Tahlequah v. Bond, the police fatally shot a man for refusing to drop a hammer he was allegedly brandishing as a weapon.

In both cases, the plaintiffs accused the officers of violating the Fourth Amendment prohibition against excessive force. Not surprisingly, the officers sought to have the cased dismissed because of qualified immunity.

In a bit of a surprise, the courts allowed these cases to go to the jury. This was a bit surprising because, based on a line of Supreme Court decisions, qualified immunity extends to an officer’s unconstitutional/unlawful conduct if it does not “violate clearly established statutory or constitutional rights of which a reasonable person would have been aware.” The court has further clarified this broad immunity by stating that it should protect “all but the plainly incompetent or those who knowingly violate the law.”

Regardless, the lower court’s decision to let the cases go the jury seemed to reflect the trend that qualified immunity protection was beginning to be reined in. At least that is what I thought.

But I was wrong.

In both cases, the Supreme Court seemed to kill any hope that the qualified immunity protection would be scaled back in the foreseeable future and used strong language in admonishing the lower courts for denying qualified immunity.

In their defense, the lower courts cited precedents with similar fact patterns in which they found a violation of clearly established rights. However, the Supreme Court disagreed and said they had viewed these cases too generally and the precedents they cited were materially distinguishable (lawyer-speak for not the same) from the facts of each case.

In other words, any variation from the facts of the previous case can render a constitutional right claim “not clearly established.” If this happens the officer faces no civil liability.

At the end of the day the take away is that the apparent trend to rein in qualified immunity has been dealt a blow. And, I have been shown to be wrong. Again.

Quite simply the stringent requirements required to defeat a defense of qualified immunity will remain in place unless Congress decides to modify the existing doctrine.

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