19 ms·

Supreme Court declines to hear cases over qualified immunity

285 points by bgentry 6y ago

andybak 6y ago
Any good analysis on this? My initial reaction is to be aghast (but then I can't believe QI is actually law) I remember reading something along the lines of "it's because SCOTUS believes the legislature needs to act" rather than "it's because the SCOTUS thinks Qualified Immunity is fine and dandy" but I'd love to hear some informed opinions.
- jimmaswell 6y ago
  > "it's because SCOTUS believes the legislature needs to act" The SC made up modern QI out of thin air on their own, so this feels like a cop-out.
  - thrill 6y ago
    Every viewpoint some aggrieved group disagrees with gets blamed on the Court "making stuff up out of thin air". The Supreme Court believes it did its job the fist time and interpreted the laws as they are written commensurate with the Constitution, and most importantly if you read between the lines, does not believe the Court as it is made up would arrive at a different conclusion. Changes to such law need to come from the several hundred elected people responsible for such things.
    - syshum 6y ago
      Except in this case QI is 100% invented by the court, and appears to run counter to statutory text as many justices have said in dissenting opinions over the years and has Justice Thomas does again in dissent here in this court order.
      - thrill 6y ago
        No, it is not invented by the Court - it is interpreted by the Court as being within the law as it is written. Lawmakers need to rewrite laws if they don't like how they get interpreted. Lawmakers are the people the the People get to influence.
        ikiris 6y ago
        Please point out the basis in legislated law for qualified immunity.
  - whoopdedo 6y ago
    That the Supreme Court has already stated QI is a thing can be seen as their reason not to argue it again. They're saying they don't see why the court would come to a different conclusion. It's a view that law is deterministic: given a particularly worded legislation and a specific finding of fact, only one conclusion can be arrived at. There can't be multiple interpretations. (A court can strike down a vague law, but if they uphold it then it must not be.) And an interpretation can't change over time or else that would be "legislating from the bench."
    - jimmaswell 6y ago
      You're making it sound impossible or forbidden but the SC has overturned its own precedents over 300 times before. https://en.m.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions https://en.m.wikipedia.org/wiki/List_of_overruled_United_Sta...
  - myself248 6y ago
    > cop-out I see what you did there.
- burkaman 6y ago
  It seems like there is not much to analyze. The headline is phrased as if the court issued some statement saying "we will not hear cases challenging qualified immunity." In fact, there were some qualified immunity challenges that had petitioned the court to be heard, and they were denied along with many other petitions, with no explanation. There is almost never any explanation when they deny a petition. So there's not really anything new, it's just more newsworthy because of the current societal context. It's the same bad precedent that they've been using for decades, and they're denying these cases with the unstated logic "we already decided this issue and you haven't convinced us we need to revisit it."
  - tharne 6y ago
    > It's the same bad precedent that they've been using for decades It's not a bad precedent, it's a precedent interpreting a bad law. It's on congress to write laws. Congress could change this law any time they want. The court can only interpret law, they can't reverse a law just because a majority of people don't like it. If the law hasn't changed since the last time they heard the case, there's no point in them hearing any more cases because there is nothing new to discuss from a legal standpoint. There's an election in November in case anyone's interested.
    - miles 6y ago
      > The court can only interpret law, they can't reverse a law just because a majority of people don't like it. The Supreme Court invented Qualified Immunity[1]. The law before that was very clear[2]: "The Civil Rights Act of 1871 is a federal statute, numbered 42 U.S.C. § 1983, that allows people to sue the government for civil rights violations. It applies when someone acting 'under color of' state-level or local law has deprived a person of rights created by the U.S. Constitution or federal statutes." [1] https://en.wikipedia.org/wiki/Qualified_immunity#History_and_background https://en.wikipedia.org/wiki/Qualified_immunity#History_and... [2] https://www.nolo.com/legal-encyclopedia/what-is-a-section-1983-lawsuit-against-the-police.html https://www.nolo.com/legal-encyclopedia/what-is-a-section-19...
      - 6y ago
- DevX101 6y ago
  I have a basic intro at https://endqualifiedimmunity.com https://endqualifiedimmunity.com and link to more detailed articles at the end of the site.
  - dsl 6y ago
    First off, I absolutely love the photo of the cops dancing with the protestor. Secondly, you should flesh out your description of what qualified immunity is so people have an understanding of what being for or against it really means. Please feel free to use parts of the explanation I posted here previously: Lets say you want to build a deck. You put together the plans, take them to the planning commission, and they rightfully reject it for being structurally unsound. Qualified immunity is what prevents you from personally suing each member of the planning commission to pressure them in to reversing their decision. Think of it like the legal system throwing an exception, we aren't even going to consider this because your beef is with the city not an individual employee. Police have qualified immunity because otherwise they would face personal lawsuits every time they wrote a rich guy a speeding ticket, or a convicted murderer has nothing better to do but get his law degree in prison. Qualified immunity does not protect civil servants from criminal charges, or when a disinterested party (someone who does not stand to benefit from the case, say the ACLU or NAACP) files suit.
- heavyset_go 6y ago
  > "it's because SCOTUS believes the legislature needs to act" This is always a cop out because it is the job of the SCOTUS to act as check on legislation, and to act when it doesn't.
  - AnimalMuppet 6y ago
    ABSOLUTELY NOT. It is not the job of the Supreme Court to "act when it doesn't". It is not their job to write legislation when Congress can't get their act together.
    - heavyset_go 6y ago
      That's just, like, your opinion, man.
mehrdadn 6y ago
Dupe (I posted this one actually): https://news.ycombinator.com/item?id=23527732 https://news.ycombinator.com/item?id=23527732
- Tomte 6y ago
  What for? Your submission has two points and zero comments. There is nothing to merge. [parent comment asked for a merge, now edited] Also, it's not a dupe. You submitted a different article.
  - mehrdadn 6y ago
    Wondering how to avoid bifurcation of the discussion. If we can close/delete/merge one of these somehow that'd be nice (feel free to get rid of the one I posted, I don't care), but maybe it won't be necessary? I have no idea.
    - Tomte 6y ago
      There is no bifurcation. Your submission did not gain any traction, nobody is commenting there. It's long gone. The oldest entry in /newest is now at 19 minutes ago, your submission was two hours ago. Nobody is going to stumble upon it anymore. I get it. You feel the karma "belongs" to you, because you were faster to find out about that decision. But that's not how it works here. Sometimes you're lucky, but very often you're not.
      - Kednicma 6y ago
        Maybe we shouldn't award karma for submissions, if it leads to the problem of multiple people vying to submit something first and leading to duplicate submissions?
        Tomte 6y ago
        dang reported years ago that he's thinking about some karma-sharing mechanism, where multiple submitters get a piece of the pie. I don't know if he abandoned the idea, didn't find a good way to do it, or maybe rolls it out tomorrow.
btmiller 6y ago
That's disappointing to hear. Something that's been made clear to me over the past month is that law enforcement actions without true consequences enables further transgressions against the public that they're meant to serve. It's essentially the question of who polices the police, and their police unions across the country play a huge role in the fallout from cases where police have crossed the line. Administrative leave with pay and eventual reinstatement is not an acceptable form of accountability in the US. Whether it's a judicial decision or legislative change I don't know, but I'm glad police brutality is getting the attention it deserves (for now).
komali2 6y ago
> Justices Clarence Thomas, one of the court’s most ardent conservatives, and Sonia Sotomayor, a liberal, have both criticized qualified immunity on separate grounds. So... why did the Court decline?
- Tomte 6y ago
  Because two is not a majority.
- scythe 6y ago
  This is a good question. SCOTUS is split 5-4 by "party" (President appointing), so with Thomas dissenting, there would have to be at least two "liberal" judges supporting this decision, since only four judges need to approve hearing a case. However, the order was unsigned, so we will probably never know.
- grensley 6y ago
  Often it's because they would rather have the legislative branch figure it out.
- thrill 6y ago
  The Court recognizes it has limited time and generally tries to choose cases that it feels it can make a solid argument of more than a single vote one way or another. Some cases are likely obvious, but many are contentious. The contentious ones need to be clarified by the elected representatives, as that's most explicitly their job. The obvious ones are frequently simply pointing out the unconstitutionality of some law as it's written, again reflecting on the poor job those same elected representatives have done.
  - yboris 6y ago
    Unrelated, but has there been any push to require a "reason for this law" section for every law put on the books? It seems to me like a simple requirement to make legislators be explicit why a law is on the books would be of tremendous service to the public, the judges, and others involved. And it would cost almost nothing (it does not take a long time to write up a "commit message" of why a "code change" is happening).
notananthem 6y ago
Strip QI as well as increase criminal prosecution- both, at minimum
partiallypro 6y ago
It's time for legislators to legislate. Many of our current problems can be traced back to our legislature failing to do anything. They always rely on court rulings or executive power. Usually because everyone is scared of losing their next election or their future role at a cable news organization. Even the people that do put forth legislation often poison pill it, so that it will never pass. So they'll never have to be held accountable if it fails or have their name on the vote count. I know it sounds counter intuitive, but I think getting rid of the line item veto has helped to cripple Congress even more. Because it used to absolved members and let them vote for something they didn't like, knowing it would not make it into law.
- burkaman 6y ago
  I agree that it's time to legislate, but this is not one of those cases where Congress caused a problem and is trying to use the court to clean it up. In this case, the courts completely invented an immunity precedent out of nothing, and now Congress will have to fix it. Just want to note that legislators are a little less at fault here than they normally are.
  - partiallypro 6y ago
    I am aware that this was a legislating from the bench situation, but it is up to Congress to fix it. Waiting on the courts to get around to it will not be fast enough, or may never come.
    - erichocean 6y ago
      > legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters. > Waiting on the courts to get around to it will not be fast enough, or may never come. The current situation is working well for everyone with the power to change it (see above).
syshum 6y ago
largely the Supreme Court is a failure and disappointment. Of all the flaws of the US Constitution the manner and scope of the US Supreme Court has to be one of the biggest blunders the founders of this nation committed.
- meddlepal 6y ago
  You're kidding right? It's probably the one thing they got completely right.
  - jcranmer 6y ago
    I wouldn't say completely--loosening the restrictions on hearing only "cases and controversies" so that SCOTUS could rule on constitutionality in more settings would be preferable to me.
  - jldugger 6y ago
    You realize judicial review -- the reason people care all that much about the Court -- is not enumerated in the Constitution, right? It was established instead by the court itself in Marbury v Madison.
  - syshum 6y ago
    You're kidding right? You point to the record of the supreme court, the process for appointing judges, and authority granted to them and you proclaim that there is perfect, the one thing the founders got right... Wow, I really have no rebuttable to that. We clearly view government and systems of justice very different
- spaetzleesser 6y ago
  I think Congress is the failure by not clarifying laws. It seems they rely more and more on the Supreme Court to do the legislative work for them.
  - syshum 6y ago
    There is plenty of blame to go around... Congress is very much a problem but their problem normally stems from the creation of a MASSIVE administrative state so they do not actually have to pass laws they just pass a statement that says "X agency will make rules to go Y goal"
surfsvammel 6y ago
English is not my first language. I just cannot wrap my head around this sentence, can’t figure out what it means. “... cases that asked the court to revisit a doctrine which shields police from lawsuits for conduct that does not involve a “clearly established” violation of the law.”
- sewer_bird 6y ago
  It's pretty dense because of all the subordinate clauses. "... cases that asked the court to revisit the existing doctrine. This doctrine protected police from lawsuits concerning police conduct, where their conduct didn't involve an obvious crime."
- silvat 6y ago
  maybe something like: 'cases that asked the court to _return to the practice of: preventing lawsuits against police, unless the law was clearly broken (therefore indefensible)_
- goodluckchuck 6y ago
  To break it down: - Police can only be sued personally if they violate "clearly established" law. - They can't be sued if they did their best in an area where the law isn't clear. - This doctrine was established by older cases. - The court is going to let those older cases stand, for now.
- alistairSH 6y ago
  ...cases that asked the court to revisit a doctrine... The Court was asked to review cases. Those cases relate to a doctrine known as qualified immunity. ...a doctrine which shields police from lawsuits... Qualified immunity shields government officials (police, in this case) from civil lawsuits (suing for damages - officials can still be held criminally accountable). ...conduct that does not involve a “clearly established” violation of the law... The QI only applies when there is not a "clearly established" violation of the law. That last phrase is the real killer. Courts require the aggrieved party to cite previous cases with EXACTLY the same set of facts. Of course, no two cases are exactly the same, so the courts have effectively given police officers blanket immunity to civil claims...
phkahler 6y ago
QI protects the police similar to how an LLC protects owners and employees. The difference is that the DAs dont really like to pursue criminal charges against the police, so in many cases of misconduct nothing comes of it. That can lead to believing the misconduct is OK.
- burkaman 6y ago
  This is not correct. Qualified immunity says that an officer can't be held liable for any actions that were not already established in case law as unconstitutional. Since this precedent has been in effect for decades, that means that in order to convict an officer, you need to find some "precisely factually on-point caselaw" from before qualified immunity existed that holds the exact actions of the officer are unconstitutional. Here's one example case, which the Supreme Court just declined to hear: https://www.supremecourt.gov/DocketPDF/19/19-679/123466/20191122164334779_Corbitt.cert.pet.pdf https://www.supremecourt.gov/DocketPDF/19/19-679/123466/2019... > Officer Vickers and several other police officers pursued a criminal suspect into Amy Corbitt’s yard. Six children, including Corbitt’s ten-year-old son, SDC, were at play. Vickers and his fellow officers ordered the children—at gunpoint—to lie on the ground, face-down. The children complied. Meanwhile, the unarmed criminal suspect was readily compliant with the officers. > While holding the children on the ground, weapons drawn, Vickers fired his gun twice at Corbitt’s pet dog. He missed the dog both times. The second time he fired, Vickers shot SDC in the back of the knee, seriously injuring him. SDC, still lying face down on the ground at Vickers’ order, was eighteen inches away from Vickers. > Corbitt filed this suit, alleging that Vickers violated SDC’s constitutional rights. In particular, Corbitt alleged that, because Vickers faced no threat, his use of deadly force was unreasonable. Vickers sought dismissal, asserting qualified immunity. The district court denied Vickers’ motion, and Vickers took an interlocutory appeal. The Eleventh Circuit, holding that the plaintiff is obligated to plead around qualified immunity, concluded that the complaint failed to establish that qualified immunity is inapplicable. Note that these are the facts as described by the court itself, not the petitioner's lawyers. Since there is no case on the record establishing that these exact actions are unconstitutional, qualified immunity means the court must assume the officer was acting in good faith and didn't know that shooting at children and a pet dog for no reason is wrong. Edit - Here's another one of the cases the court just declined to hear: https://www.supremecourt.gov/DocketPDF/19/19-899/128836/20200116111103542_West_CertPetition.pdf https://www.supremecourt.gov/DocketPDF/19/19-899/128836/2020... > QUESTION PRESENTED > Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw. I encourage you to read the case, but basically, the petitioner gave the police her keys and consent to go into her house to look for a suspect (after being threatened with arrest for "harboring a fugitive"). Instead, the police bombarded the house with tear gas grenades, destroying it and almost everything inside. The suspect was not there, and the police did not have any reason to believe he was. The petitioner and her children were homeless for two months, and were offered a hotel room for 3 weeks and $900 as compensation. > The panel majority found that the officers were entitled to qualified immunity on the scope-of-consent question because “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent” when they took West’s permission to “get inside” her house as permission to bombard and destroy it. App. 13. After all, the majority reasoned, the officers “did ‘get inside’ [her] house, first with objects and later with people.” Ibid.
parsimo2010 6y ago
There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. Qualified immunity only protects you from civil lawsuits. It doesn't protect you from criminal charges. Police officers can be charged with homicide or assault in cases of police brutality without qualified immunity applying. The bigger question of why more cops aren't going to jail has nothing to do with qualified immunity. And holding cops accountable is something any state can do without the Supreme Court. Qualified immunity can prevent the fallback option of suing a cop that isn't charged with a crime. But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes.
- bgentry 6y ago
  Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. If you believe the experts that are well-versed in this area, this is not how it works in practice. The Wikipedia article covers a lot of the controversy around this doctrine: https://en.wikipedia.org/wiki/Qualified_immunity#Objections_and_criticisms https://en.wikipedia.org/wiki/Qualified_immunity#Objections_... Here is an example of a man in Grand Rapids, Michigan, who was brutally assaulted by undercover officers because they believed he was somebody else. Take a look at how difficult it has been for him to get any recourse for a blatantly obvious abuse of power (6 years and counting): https://twitter.com/AaronParseghian/status/1270181815664496640 https://twitter.com/AaronParseghian/status/12701818156644966...
  - tick_tock_tick 6y ago
    In practice means DA's aren't doing their job.
    - bgentry 6y ago
      Qualified Immunity is a protection against civil liability. This does not generally involve District Attorneys, whose job is to prosecute criminal cases. The lack of criminal prosecutions is more of an indication that District Attorneys aren't doing their job (or that the reality of their job is that they are disincentivized from prosecuting criminal cops).
DevX101 6y ago
I built a site to raise grassroots bi-partisan support to end qualified immunity at https://endqualifiedimmunity.com https://endqualifiedimmunity.com. The goal is to get Republicans, Democrats, Libertarians to all contact their representatives and senators to support legislation against this. This is the first time I've ever done anything remotely political beyond voting but was so incredulous at the broad scope of this judicial policy and it's impact on removing accountability from police misconduct that I had to do something. If you'd like to help in any way on this -- contact me (see profile).
- bgentry 6y ago
  Nice work! If I can offer a suggestion, I think it might help to list everybody who is on record as supporting the bill. In addition to many House Democrats, at least one Republican has also signed on: https://twitter.com/justinamash/status/1270859758061436929 https://twitter.com/justinamash/status/1270859758061436929
  - DevX101 6y ago
    Thank you! That's my goal this week to put together a current list of the co-sponsors on all bills aimed at restricting/ending qualified immunity.
    - bgentry 6y ago
      There's also the Players Coalition, a group of >1400 prominent professional athletes and coaches, which has publicly called on Congress to pass the Ending Qualified Immunity Act: https://www.washingtonpost.com/sports/2020/06/10/athletes-petition-calls-congress-end-qualified-immunity-police/ https://www.washingtonpost.com/sports/2020/06/10/athletes-pe...
  - deleted 6y ago
    [deleted]
- dmix 6y ago
  Thanks for you work on this. To help promote the cause you can add some quotes by Clarence Thomas to help promote the cause. He chided the other supreme court members for not supporting reviewing it. > I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this question, I would grant the petition for certiorari. - Clarence Thomas https://www.supremecourt.gov/opinions/19pdf/18-1287_09m1.pdf https://www.supremecourt.gov/opinions/19pdf/18-1287_09m1.pdf https://lawandcrime.com/supreme-court/clarence-thomas-chides-supreme-court-for-ignoring-qualified-immunity-i-continue-to-have-strong-doubts/ https://lawandcrime.com/supreme-court/clarence-thomas-chides... Edit: looks like you included his and other supporters pictures already which is cool
anm89 6y ago
We need term limits on the supreme court. The idea of lifetime appointments for anything in a democratic society is absurd.
- AlexandrB 6y ago
  Maybe, but they would need to be really long (16 years?). Otherwise every administration will just flip judges "to their side" at the first opportunity, nullifying the court's role as a check on executive/legislative power.
hirundo 6y ago
Kudos to Clarence Thomas for being the sole Supreme to dissent from this decision: “There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe... Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.”
- loeg 6y ago
  Yes, kudos to him for dissenting publically. Is it true that he was the only dissenter, though? Sotomayor has previously expressed dissent to the doctrine. No one wrote a majority opinion for not taking the appeal; I suppose other justices could have signed on to the dissent, but I guess I don't know how often petition refusals get written opinions at all. I get the impression these decision are mostly made behind closed doors.
- nsajko 6y ago
  AFAIK, Alito and Gorsuch also dissented.
  - wahern 6y ago
    No, just Thomas. See PDF page 52 at https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf https://www.supremecourt.gov/orders/courtorders/061520zor_f2... My guess is that many of the justices thought that granting certiorari at a critical moment in the public debate might provide a convenient excuse for Congress to sit on its hands. Sotomayor and Ginsburg have both previously signaled their willingness to reexamine the precedent, yet neither wrote a dissent. If Congress does nothing I'd expect SCOTUS to revisit the issue in the next couple of years.
    - deleted 6y ago
      [deleted]
- 6gvONxR4sf7o 6y ago
  Yeah, either only clearly established laws apply to everyone or all laws apply to everyone.
tathougies 6y ago
> In a dissent from the court’s decision not to hear one of the qualified immunity cases it was considering, Thomas reiterated his opposition to the doctrine. > > “There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe,” Thomas wrote. “Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.” When will the voices of reason prevail?
MR4D 6y ago
Please hear me out before voting/replying.... I think this is actually a good thing, despite the headline, for two reasons: 1 - It forces Congress to do this (and it's their job to write the rules, not SCOTUS) 2 - By forcing Congress to write the law, they will have to address all of the issues around it, which might allow for some interesting things that would never have come from a SCOTUS decision. For instance, maybe Qualified Immunity automatically goes away if you don't have your chest camera on. Maybe you keep Qualified Immunity if your chest camera is on, and your actions have been confirmed by an independent board as lawful. There are lots of variants, and I only illustrated two of them. Of course, it's Congress, so they can mess this up as much as anything, but at least they will get the input of 535 members (and from constituents) when crafting the approach.
- ianleeclark 6y ago
  > It forces Congress to do this (and it's their job to write the rules, not SCOTUS) This likely will never happen. Just outright, it won't happen. I'm not saying we should rely on courts for legislation, but, if one of the last release valves for crises won't let up, it won't happen. The gridlock is insurmountable.

285 points by bgentry 6y ago

Any good analysis on this? My initial reaction is to be aghast (but then I can't believe QI is actually law) I remember reading something along the lines of "it's because SCOTUS believes the legislature needs to act" rather than "it's because the SCOTUS thinks Qualified Immunity is fine and dandy" but I'd love to hear some informed opinions.

jimmaswell 6y ago
> "it's because SCOTUS believes the legislature needs to act" The SC made up modern QI out of thin air on their own, so this feels like a cop-out.
- thrill 6y ago
  Every viewpoint some aggrieved group disagrees with gets blamed on the Court "making stuff up out of thin air". The Supreme Court believes it did its job the fist time and interpreted the laws as they are written commensurate with the Constitution, and most importantly if you read between the lines, does not believe the Court as it is made up would arrive at a different conclusion. Changes to such law need to come from the several hundred elected people responsible for such things.
  - syshum 6y ago
    Except in this case QI is 100% invented by the court, and appears to run counter to statutory text as many justices have said in dissenting opinions over the years and has Justice Thomas does again in dissent here in this court order.
    - thrill 6y ago
      No, it is not invented by the Court - it is interpreted by the Court as being within the law as it is written. Lawmakers need to rewrite laws if they don't like how they get interpreted. Lawmakers are the people the the People get to influence.
      - ikiris 6y ago
        Please point out the basis in legislated law for qualified immunity.
- whoopdedo 6y ago
  That the Supreme Court has already stated QI is a thing can be seen as their reason not to argue it again. They're saying they don't see why the court would come to a different conclusion. It's a view that law is deterministic: given a particularly worded legislation and a specific finding of fact, only one conclusion can be arrived at. There can't be multiple interpretations. (A court can strike down a vague law, but if they uphold it then it must not be.) And an interpretation can't change over time or else that would be "legislating from the bench."
  - jimmaswell 6y ago
    You're making it sound impossible or forbidden but the SC has overturned its own precedents over 300 times before. https://en.m.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions https://en.m.wikipedia.org/wiki/List_of_overruled_United_Sta...
- myself248 6y ago
  > cop-out I see what you did there.
burkaman 6y ago
It seems like there is not much to analyze. The headline is phrased as if the court issued some statement saying "we will not hear cases challenging qualified immunity." In fact, there were some qualified immunity challenges that had petitioned the court to be heard, and they were denied along with many other petitions, with no explanation. There is almost never any explanation when they deny a petition. So there's not really anything new, it's just more newsworthy because of the current societal context. It's the same bad precedent that they've been using for decades, and they're denying these cases with the unstated logic "we already decided this issue and you haven't convinced us we need to revisit it."
- tharne 6y ago
  > It's the same bad precedent that they've been using for decades It's not a bad precedent, it's a precedent interpreting a bad law. It's on congress to write laws. Congress could change this law any time they want. The court can only interpret law, they can't reverse a law just because a majority of people don't like it. If the law hasn't changed since the last time they heard the case, there's no point in them hearing any more cases because there is nothing new to discuss from a legal standpoint. There's an election in November in case anyone's interested.
  - miles 6y ago
    > The court can only interpret law, they can't reverse a law just because a majority of people don't like it. The Supreme Court invented Qualified Immunity[1]. The law before that was very clear[2]: "The Civil Rights Act of 1871 is a federal statute, numbered 42 U.S.C. § 1983, that allows people to sue the government for civil rights violations. It applies when someone acting 'under color of' state-level or local law has deprived a person of rights created by the U.S. Constitution or federal statutes." [1] https://en.wikipedia.org/wiki/Qualified_immunity#History_and_background https://en.wikipedia.org/wiki/Qualified_immunity#History_and... [2] https://www.nolo.com/legal-encyclopedia/what-is-a-section-1983-lawsuit-against-the-police.html https://www.nolo.com/legal-encyclopedia/what-is-a-section-19...
    - 6y ago
DevX101 6y ago
I have a basic intro at https://endqualifiedimmunity.com https://endqualifiedimmunity.com and link to more detailed articles at the end of the site.
- dsl 6y ago
  First off, I absolutely love the photo of the cops dancing with the protestor. Secondly, you should flesh out your description of what qualified immunity is so people have an understanding of what being for or against it really means. Please feel free to use parts of the explanation I posted here previously: Lets say you want to build a deck. You put together the plans, take them to the planning commission, and they rightfully reject it for being structurally unsound. Qualified immunity is what prevents you from personally suing each member of the planning commission to pressure them in to reversing their decision. Think of it like the legal system throwing an exception, we aren't even going to consider this because your beef is with the city not an individual employee. Police have qualified immunity because otherwise they would face personal lawsuits every time they wrote a rich guy a speeding ticket, or a convicted murderer has nothing better to do but get his law degree in prison. Qualified immunity does not protect civil servants from criminal charges, or when a disinterested party (someone who does not stand to benefit from the case, say the ACLU or NAACP) files suit.
heavyset_go 6y ago
> "it's because SCOTUS believes the legislature needs to act" This is always a cop out because it is the job of the SCOTUS to act as check on legislation, and to act when it doesn't.
- AnimalMuppet 6y ago
  ABSOLUTELY NOT. It is not the job of the Supreme Court to "act when it doesn't". It is not their job to write legislation when Congress can't get their act together.
  - heavyset_go 6y ago
    That's just, like, your opinion, man.

mehrdadn 6y ago

Dupe (I posted this one actually): https://news.ycombinator.com/item?id=23527732 https://news.ycombinator.com/item?id=23527732

Tomte 6y ago
What for? Your submission has two points and zero comments. There is nothing to merge. [parent comment asked for a merge, now edited] Also, it's not a dupe. You submitted a different article.
- mehrdadn 6y ago
  Wondering how to avoid bifurcation of the discussion. If we can close/delete/merge one of these somehow that'd be nice (feel free to get rid of the one I posted, I don't care), but maybe it won't be necessary? I have no idea.
  - Tomte 6y ago
    There is no bifurcation. Your submission did not gain any traction, nobody is commenting there. It's long gone. The oldest entry in /newest is now at 19 minutes ago, your submission was two hours ago. Nobody is going to stumble upon it anymore. I get it. You feel the karma "belongs" to you, because you were faster to find out about that decision. But that's not how it works here. Sometimes you're lucky, but very often you're not.
    - Kednicma 6y ago
      Maybe we shouldn't award karma for submissions, if it leads to the problem of multiple people vying to submit something first and leading to duplicate submissions?
      - Tomte 6y ago
        dang reported years ago that he's thinking about some karma-sharing mechanism, where multiple submitters get a piece of the pie. I don't know if he abandoned the idea, didn't find a good way to do it, or maybe rolls it out tomorrow.

btmiller 6y ago

That's disappointing to hear. Something that's been made clear to me over the past month is that law enforcement actions without true consequences enables further transgressions against the public that they're meant to serve. It's essentially the question of who polices the police, and their police unions across the country play a huge role in the fallout from cases where police have crossed the line. Administrative leave with pay and eventual reinstatement is not an acceptable form of accountability in the US. Whether it's a judicial decision or legislative change I don't know, but I'm glad police brutality is getting the attention it deserves (for now).

komali2 6y ago

> Justices Clarence Thomas, one of the court’s most ardent conservatives, and Sonia Sotomayor, a liberal, have both criticized qualified immunity on separate grounds. So... why did the Court decline?

Tomte 6y ago
Because two is not a majority.
scythe 6y ago
This is a good question. SCOTUS is split 5-4 by "party" (President appointing), so with Thomas dissenting, there would have to be at least two "liberal" judges supporting this decision, since only four judges need to approve hearing a case. However, the order was unsigned, so we will probably never know.
grensley 6y ago
Often it's because they would rather have the legislative branch figure it out.
thrill 6y ago
The Court recognizes it has limited time and generally tries to choose cases that it feels it can make a solid argument of more than a single vote one way or another. Some cases are likely obvious, but many are contentious. The contentious ones need to be clarified by the elected representatives, as that's most explicitly their job. The obvious ones are frequently simply pointing out the unconstitutionality of some law as it's written, again reflecting on the poor job those same elected representatives have done.
- yboris 6y ago
  Unrelated, but has there been any push to require a "reason for this law" section for every law put on the books? It seems to me like a simple requirement to make legislators be explicit why a law is on the books would be of tremendous service to the public, the judges, and others involved. And it would cost almost nothing (it does not take a long time to write up a "commit message" of why a "code change" is happening).

notananthem 6y ago

Strip QI as well as increase criminal prosecution- both, at minimum

partiallypro 6y ago

It's time for legislators to legislate. Many of our current problems can be traced back to our legislature failing to do anything. They always rely on court rulings or executive power. Usually because everyone is scared of losing their next election or their future role at a cable news organization. Even the people that do put forth legislation often poison pill it, so that it will never pass. So they'll never have to be held accountable if it fails or have their name on the vote count. I know it sounds counter intuitive, but I think getting rid of the line item veto has helped to cripple Congress even more. Because it used to absolved members and let them vote for something they didn't like, knowing it would not make it into law.

burkaman 6y ago
I agree that it's time to legislate, but this is not one of those cases where Congress caused a problem and is trying to use the court to clean it up. In this case, the courts completely invented an immunity precedent out of nothing, and now Congress will have to fix it. Just want to note that legislators are a little less at fault here than they normally are.
- partiallypro 6y ago
  I am aware that this was a legislating from the bench situation, but it is up to Congress to fix it. Waiting on the courts to get around to it will not be fast enough, or may never come.
  - erichocean 6y ago
    > legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters. > Waiting on the courts to get around to it will not be fast enough, or may never come. The current situation is working well for everyone with the power to change it (see above).

syshum 6y ago

largely the Supreme Court is a failure and disappointment. Of all the flaws of the US Constitution the manner and scope of the US Supreme Court has to be one of the biggest blunders the founders of this nation committed.

meddlepal 6y ago
You're kidding right? It's probably the one thing they got completely right.
- jcranmer 6y ago
  I wouldn't say completely--loosening the restrictions on hearing only "cases and controversies" so that SCOTUS could rule on constitutionality in more settings would be preferable to me.
- jldugger 6y ago
  You realize judicial review -- the reason people care all that much about the Court -- is not enumerated in the Constitution, right? It was established instead by the court itself in Marbury v Madison.
- syshum 6y ago
  You're kidding right? You point to the record of the supreme court, the process for appointing judges, and authority granted to them and you proclaim that there is perfect, the one thing the founders got right... Wow, I really have no rebuttable to that. We clearly view government and systems of justice very different
spaetzleesser 6y ago
I think Congress is the failure by not clarifying laws. It seems they rely more and more on the Supreme Court to do the legislative work for them.
- syshum 6y ago
  There is plenty of blame to go around... Congress is very much a problem but their problem normally stems from the creation of a MASSIVE administrative state so they do not actually have to pass laws they just pass a statement that says "X agency will make rules to go Y goal"

surfsvammel 6y ago

English is not my first language. I just cannot wrap my head around this sentence, can’t figure out what it means. “... cases that asked the court to revisit a doctrine which shields police from lawsuits for conduct that does not involve a “clearly established” violation of the law.”

sewer_bird 6y ago
It's pretty dense because of all the subordinate clauses. "... cases that asked the court to revisit the existing doctrine. This doctrine protected police from lawsuits concerning police conduct, where their conduct didn't involve an obvious crime."
silvat 6y ago
maybe something like: 'cases that asked the court to _return to the practice of: preventing lawsuits against police, unless the law was clearly broken (therefore indefensible)_
goodluckchuck 6y ago
To break it down: - Police can only be sued personally if they violate "clearly established" law. - They can't be sued if they did their best in an area where the law isn't clear. - This doctrine was established by older cases. - The court is going to let those older cases stand, for now.
alistairSH 6y ago
...cases that asked the court to revisit a doctrine... The Court was asked to review cases. Those cases relate to a doctrine known as qualified immunity. ...a doctrine which shields police from lawsuits... Qualified immunity shields government officials (police, in this case) from civil lawsuits (suing for damages - officials can still be held criminally accountable). ...conduct that does not involve a “clearly established” violation of the law... The QI only applies when there is not a "clearly established" violation of the law. That last phrase is the real killer. Courts require the aggrieved party to cite previous cases with EXACTLY the same set of facts. Of course, no two cases are exactly the same, so the courts have effectively given police officers blanket immunity to civil claims...

phkahler 6y ago

QI protects the police similar to how an LLC protects owners and employees. The difference is that the DAs dont really like to pursue criminal charges against the police, so in many cases of misconduct nothing comes of it. That can lead to believing the misconduct is OK.

burkaman 6y ago
This is not correct. Qualified immunity says that an officer can't be held liable for any actions that were not already established in case law as unconstitutional. Since this precedent has been in effect for decades, that means that in order to convict an officer, you need to find some "precisely factually on-point caselaw" from before qualified immunity existed that holds the exact actions of the officer are unconstitutional. Here's one example case, which the Supreme Court just declined to hear: https://www.supremecourt.gov/DocketPDF/19/19-679/123466/20191122164334779_Corbitt.cert.pet.pdf https://www.supremecourt.gov/DocketPDF/19/19-679/123466/2019... > Officer Vickers and several other police officers pursued a criminal suspect into Amy Corbitt’s yard. Six children, including Corbitt’s ten-year-old son, SDC, were at play. Vickers and his fellow officers ordered the children—at gunpoint—to lie on the ground, face-down. The children complied. Meanwhile, the unarmed criminal suspect was readily compliant with the officers. > While holding the children on the ground, weapons drawn, Vickers fired his gun twice at Corbitt’s pet dog. He missed the dog both times. The second time he fired, Vickers shot SDC in the back of the knee, seriously injuring him. SDC, still lying face down on the ground at Vickers’ order, was eighteen inches away from Vickers. > Corbitt filed this suit, alleging that Vickers violated SDC’s constitutional rights. In particular, Corbitt alleged that, because Vickers faced no threat, his use of deadly force was unreasonable. Vickers sought dismissal, asserting qualified immunity. The district court denied Vickers’ motion, and Vickers took an interlocutory appeal. The Eleventh Circuit, holding that the plaintiff is obligated to plead around qualified immunity, concluded that the complaint failed to establish that qualified immunity is inapplicable. Note that these are the facts as described by the court itself, not the petitioner's lawyers. Since there is no case on the record establishing that these exact actions are unconstitutional, qualified immunity means the court must assume the officer was acting in good faith and didn't know that shooting at children and a pet dog for no reason is wrong. Edit - Here's another one of the cases the court just declined to hear: https://www.supremecourt.gov/DocketPDF/19/19-899/128836/20200116111103542_West_CertPetition.pdf https://www.supremecourt.gov/DocketPDF/19/19-899/128836/2020... > QUESTION PRESENTED > Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw. I encourage you to read the case, but basically, the petitioner gave the police her keys and consent to go into her house to look for a suspect (after being threatened with arrest for "harboring a fugitive"). Instead, the police bombarded the house with tear gas grenades, destroying it and almost everything inside. The suspect was not there, and the police did not have any reason to believe he was. The petitioner and her children were homeless for two months, and were offered a hotel room for 3 weeks and $900 as compensation. > The panel majority found that the officers were entitled to qualified immunity on the scope-of-consent question because “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent” when they took West’s permission to “get inside” her house as permission to bombard and destroy it. App. 13. After all, the majority reasoned, the officers “did ‘get inside’ [her] house, first with objects and later with people.” Ibid.

parsimo2010 6y ago

There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. Qualified immunity only protects you from civil lawsuits. It doesn't protect you from criminal charges. Police officers can be charged with homicide or assault in cases of police brutality without qualified immunity applying. The bigger question of why more cops aren't going to jail has nothing to do with qualified immunity. And holding cops accountable is something any state can do without the Supreme Court. Qualified immunity can prevent the fallback option of suing a cop that isn't charged with a crime. But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes.

bgentry 6y ago
Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. If you believe the experts that are well-versed in this area, this is not how it works in practice. The Wikipedia article covers a lot of the controversy around this doctrine: https://en.wikipedia.org/wiki/Qualified_immunity#Objections_and_criticisms https://en.wikipedia.org/wiki/Qualified_immunity#Objections_... Here is an example of a man in Grand Rapids, Michigan, who was brutally assaulted by undercover officers because they believed he was somebody else. Take a look at how difficult it has been for him to get any recourse for a blatantly obvious abuse of power (6 years and counting): https://twitter.com/AaronParseghian/status/1270181815664496640 https://twitter.com/AaronParseghian/status/12701818156644966...
- tick_tock_tick 6y ago
  In practice means DA's aren't doing their job.
  - bgentry 6y ago
    Qualified Immunity is a protection against civil liability. This does not generally involve District Attorneys, whose job is to prosecute criminal cases. The lack of criminal prosecutions is more of an indication that District Attorneys aren't doing their job (or that the reality of their job is that they are disincentivized from prosecuting criminal cops).

DevX101 6y ago

I built a site to raise grassroots bi-partisan support to end qualified immunity at https://endqualifiedimmunity.com https://endqualifiedimmunity.com. The goal is to get Republicans, Democrats, Libertarians to all contact their representatives and senators to support legislation against this. This is the first time I've ever done anything remotely political beyond voting but was so incredulous at the broad scope of this judicial policy and it's impact on removing accountability from police misconduct that I had to do something. If you'd like to help in any way on this -- contact me (see profile).

bgentry 6y ago
Nice work! If I can offer a suggestion, I think it might help to list everybody who is on record as supporting the bill. In addition to many House Democrats, at least one Republican has also signed on: https://twitter.com/justinamash/status/1270859758061436929 https://twitter.com/justinamash/status/1270859758061436929
- DevX101 6y ago
  Thank you! That's my goal this week to put together a current list of the co-sponsors on all bills aimed at restricting/ending qualified immunity.
  - bgentry 6y ago
    There's also the Players Coalition, a group of >1400 prominent professional athletes and coaches, which has publicly called on Congress to pass the Ending Qualified Immunity Act: https://www.washingtonpost.com/sports/2020/06/10/athletes-petition-calls-congress-end-qualified-immunity-police/ https://www.washingtonpost.com/sports/2020/06/10/athletes-pe...
- deleted 6y ago
  [deleted]
dmix 6y ago
Thanks for you work on this. To help promote the cause you can add some quotes by Clarence Thomas to help promote the cause. He chided the other supreme court members for not supporting reviewing it. > I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this question, I would grant the petition for certiorari. - Clarence Thomas https://www.supremecourt.gov/opinions/19pdf/18-1287_09m1.pdf https://www.supremecourt.gov/opinions/19pdf/18-1287_09m1.pdf https://lawandcrime.com/supreme-court/clarence-thomas-chides-supreme-court-for-ignoring-qualified-immunity-i-continue-to-have-strong-doubts/ https://lawandcrime.com/supreme-court/clarence-thomas-chides... Edit: looks like you included his and other supporters pictures already which is cool

anm89 6y ago

We need term limits on the supreme court. The idea of lifetime appointments for anything in a democratic society is absurd.

AlexandrB 6y ago
Maybe, but they would need to be really long (16 years?). Otherwise every administration will just flip judges "to their side" at the first opportunity, nullifying the court's role as a check on executive/legislative power.

hirundo 6y ago

Kudos to Clarence Thomas for being the sole Supreme to dissent from this decision: “There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe... Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.”

loeg 6y ago
Yes, kudos to him for dissenting publically. Is it true that he was the only dissenter, though? Sotomayor has previously expressed dissent to the doctrine. No one wrote a majority opinion for not taking the appeal; I suppose other justices could have signed on to the dissent, but I guess I don't know how often petition refusals get written opinions at all. I get the impression these decision are mostly made behind closed doors.
nsajko 6y ago
AFAIK, Alito and Gorsuch also dissented.
- wahern 6y ago
  No, just Thomas. See PDF page 52 at https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf https://www.supremecourt.gov/orders/courtorders/061520zor_f2... My guess is that many of the justices thought that granting certiorari at a critical moment in the public debate might provide a convenient excuse for Congress to sit on its hands. Sotomayor and Ginsburg have both previously signaled their willingness to reexamine the precedent, yet neither wrote a dissent. If Congress does nothing I'd expect SCOTUS to revisit the issue in the next couple of years.
  - deleted 6y ago
    [deleted]
6gvONxR4sf7o 6y ago
Yeah, either only clearly established laws apply to everyone or all laws apply to everyone.

tathougies 6y ago

> In a dissent from the court’s decision not to hear one of the qualified immunity cases it was considering, Thomas reiterated his opposition to the doctrine. > > “There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe,” Thomas wrote. “Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.” When will the voices of reason prevail?

MR4D 6y ago

Please hear me out before voting/replying.... I think this is actually a good thing, despite the headline, for two reasons: 1 - It forces Congress to do this (and it's their job to write the rules, not SCOTUS) 2 - By forcing Congress to write the law, they will have to address all of the issues around it, which might allow for some interesting things that would never have come from a SCOTUS decision. For instance, maybe Qualified Immunity automatically goes away if you don't have your chest camera on. Maybe you keep Qualified Immunity if your chest camera is on, and your actions have been confirmed by an independent board as lawful. There are lots of variants, and I only illustrated two of them. Of course, it's Congress, so they can mess this up as much as anything, but at least they will get the input of 535 members (and from constituents) when crafting the approach.

ianleeclark 6y ago
> It forces Congress to do this (and it's their job to write the rules, not SCOTUS) This likely will never happen. Just outright, it won't happen. I'm not saying we should rely on courts for legislation, but, if one of the last release valves for crises won't let up, it won't happen. The gridlock is insurmountable.