Justice Thomas Calls for Supreme Court to Review Qualified Immunity

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The Supreme Court opted not to hear a case on qualified immunity Monday, drawing sharp criticism from Justice Clarence Thomas, who holds strong doubts about shielding police from civil lawsuits over the use of excessive force.

The George H. W. Bush appointee wrote Monday in a six-page dissent that there may be no justification for the “one-size-fits-all” protection. In 1982, the Supreme Court ruled in Harlow v. Fitzgerald that the legal doctrine was meant to ensure litigation does not distract “official energy from pressing public issues” or make “able citizens” think twice about stepping up to serve in public offices. 

As protests continue over the death of George Floyd, a 46-year-old black man killed in Minneapolis police custody, cries continue to rise across the country for the abolishment of legal protection for officers found to have used excessive force.

But Thomas argued his colleagues should have taken up the case of petitioner Alexander Baxter, who claims two law enforcement officers set a dog on him after he surrendered during a burglary. The justice has argued that the court should reconsider qualified immunity jurisprudence in the past. 

“Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity ‘was ‘historically accorded the relevant official’ in an analogous situation ‘at common law,’’” Thomas wrote Monday, quoting his concurring opinion in the 2017 decision Ziglar v. Abbasi

The Sixth Circuit in 2018 sided with the two Tennessee police officers who pursued Baxter. Under Supreme Court precedents, the appeals court held that while their conduct violated the Constitution, the officers could not be held liable because they did not violate a clearly established right.

Scott Michelman, legal director for the ACLU’s District of Columbia branch, said it was deeply disappointing that the Supreme Court did not take up Baxter’s case in a time of national reckoning over police violence. 

“Justice Thomas’ dissent from the denial for review in the ACLU’s challenge to qualified immunity underscores how badly the law has strayed from Congress’ original intent to hold law enforcement accountable for the violation of constitutional rights,” Michelman said. “We’ve seen the deadly consequences play out on the streets and black Americans have largely paid the price.” 

Thomas, while noting that he expresses no definitive view on the question of “good-faith official conduct,” wrote Monday that the standard once laid out in the Supreme Court’s 1967 decision in Pierson v. Ray allowed for protections for law enforcement confined to certain circumstances, rather than the broader immunity outlined 15 years later in Harlow.

“The Court has continued to conduct this inquiry in absolute immunity cases, even after the sea change in qualified immunity doctrine,” Thomas wrote, citing the 1991 decision in Burns v. Reed that found state prosecutors advising police are not entitled to absolute immunity. 

“We should do so in qualified immunity cases as well,” the justice argued. 

The high court on Monday denied all major petitions to reconsider qualified immunity, leaving it to Congress to do away with the legal doctrine loudly criticized in recent weeks as a protection that keeps police from being held accountable for excessive use of force. 

While no colleagues on the bench joined Thomas in calling for action, Michelman argued the court has a responsibility to correct jurisprudence that provides impunity for government actors.

“I do wonder if other justices who may sympathize with him about the problems of qualified immunity might have held their fire in this instance because they’re waiting to see what Congress does,” Michelman said. But the ACLU attorney called for Congress and the courts to not pass the issue off to another branch. 

Back in 2014, Baxter was rushed to the emergency room after suffering injuries from the police dog. He now seeks damages from the officers he alleges are responsible, Brad Bracey and Spencer Harris.

The officers claim that Harris did not see Baxter’s hands raised as law enforcement pursued the burglar — after he stole some change, car keys and a bottle of liquor from a house in Nashville, Tennessee — and that the dog was given a verbal command to release.

Michelman, with the ACLU, said amid an epidemic of unjustified police violence in the United States, national attention naturally turns to Americans killed in altercations involving law enforcement. 

“But the fact that the lack of officer accountability leads to deadly uses of force should not obscure that many other non-deadly, but still very harmful, unjustified uses of force occur all the time. Alex Baxter’s case is one example of that,” Michelman said. 

Attorney Melissa Roberge, representing the two police officers, did not respond to a request for comment on Justice Thomas’ dissent in the petition to hear Baxter v. Bracey.

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