For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine -- which shields public officials from liability, even when they break the law -- was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases
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For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine -- which shields public officials from liability, even when they break the law -- was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.
The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances" (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.
The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether "the judge-made doctrine of qualified immunity" should "be narrowed or abolished." The Cato Institute filed a brief in support of this petition, as did a vast, cross-ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court's long conference on October 1st -- that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op-ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking "Could A Dog Bite Bring An End To Qualified Immunity?" All of us were holding our breath as the Supreme Court prepared to start its new term...
But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. ("Rescheduling" means the petition will be considered at a later date, and that the Justices have yet to formally consider it -- as opposed to "relisting," which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again -- no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.
Why is the Court repeatedly rescheduling Baxter? It's impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered -- specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor's office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was "clearly established," but also discussing his "broader unease with the real-world functioning of modern immunity practice." And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.
Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes -- co-chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery -- who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of "whether the doctrine of qualified immunity should be narrowed or revisited entirely," which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th -- just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid-November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.
Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I've sketched out above, that's no guarantee that they'll grant the petition. But this is, in my view, a promising development, especially in light of the Court's disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they've realized that this issue is simply not going away. But by the end of this term, I suspect that we'll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.