Supreme Court

Clarence Thomas, the Supreme Court's Most Conservative Justice, Trashes Qualified Immunity Again

The Court has "failed to justify our enacted policy," he wrote.

|

Clarence Thomas is no liberal hero. The associate justice on the U.S. Supreme Court is the most conservative member atop the highest rung of the American judiciary. And he has once again railed against qualified immunity, the legal doctrine that makes it almost comically difficult to hold government officials accountable for misconduct when they violate your rights.

"As I have noted before, our qualified immunity jurisprudence stands on shaky ground," he wrote today.

On the congressional level, that rallying cry has primarily been championed by Democrats, tied to police reform legislation that Republicans have resisted. Among the state actors recently protected by qualified immunity: two cops who tased a suicidal man they knew was covered in gasoline, causing him to burst into flames; a cop who led a bungled SWAT raid that saw an innocent 78-year-old's home damaged with flash-bang grenades; a cop who shot a 15-year-old on his way to school; a cop who shot a 10-year-old while aiming at a nonthreatening dog.

The legal doctrine prohibits victims from suing government actors for misconduct unless their exact behavior has been deemed unconstitutional somewhere in a preexisting court ruling. If not, then victims are out of luck, even when the court admits that the state violated their rights. In all the above cases, the plaintiffs were not given the privilege of bringing their cases before a jury.

Last year, Thomas expressed his skepticism toward qualified immunity in Baxter v. Braceya case that saw two cops unleash a police dog on a man who had already surrendered. The Supreme Court declined to hear that case, with Thomas as the lone dissenter.

But qualified immunity doesn't only protect police. It protects government officials in general, something that Thomas honed in on today as he protested the Court's refusal to hear a different case: Hoggard v. Rhodes, a lawsuit surrounding a student who had her First Amendment rights violated by Arkansas State University. The administrators received qualified immunity, and thus will not be held accountable.

"The one-size-fits-all doctrine is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions," said Thomas. "Why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question."

In fall of 2017, Ashlyn Hoggard set up a table in front of the student union to recruit peers for a new chapter of Turning Point USA, a conservative advocacy group that focuses on student organizing. Administrators phoned the police, who shut Hoggard's operation down and threatened to punish her for violating the student code of conduct. University policy required permission to speak anywhere on college grounds and carved out "speech zones"—totaling 1 percent of campus—where such activity was allowed. 

The U.S. Court of Appeals for the 8th Circuit agreed that Hoggard's First Amendment rights were violated. But in the same breath, they granted the administrators qualified immunity. Without a near-identical court precedent already on the books—one that mirrored the facts of Hoggard's case—the university employees couldn't have known what they were doing was illegal, the court said.

"Public university officials shouldn't get to hide behind qualified immunity when they blatantly violate their students' First Amendment rights," says Chris Schandevel, legal counsel for Alliance Defending Freedom and one of Hoggard's attorneys. "As Justice Thomas correctly noted, university officials have plenty of time to review their policies and consider the constitutionality of their actions. We're disappointed the Court chose not hear this case, but we are hopeful the Court will heed Justice Thomas's recommendation and take up the doctrine of qualified immunity in the future."

It was, after all, the Supreme Court that legislated the legal principle into existence. Current civil rights law explicitly permits victims of government abuse to seek recourse for damages, but the high court concocted qualified immunity in direct contention with that, first in Pierson v. Ray (1967) and then in Harlow v. Fitzgerald (1982).

Yet while the Supreme Court made this mess, it has declined to consider an avalanche of cases that would have potentially reshaped the doctrine. Some recent petitions refused by the justices: a case that saw a cop kill a man who'd been sleeping his car; a case that saw two cops assault and arrest a man for standing outside of his own house; and a case that saw two cops allegedly steal $225,000 during the execution of a search warrant. They all received qualified immunity.

"We have 'substitute[d] our own policy preferences for the mandates of Congress' by conjuring up blanket immunity," noted Thomas, "and then failed to justify our enacted policy."

NEXT: The CDC Rightly Contradicts the WHO's Absurdly Cautious Mask Advice for Vaccinated People

Supreme Court Qualified Immunity Free Speech First Amendment Clarence Thomas Police Police Abuse Criminal Justice Education College Arkansas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

49 responses to “Clarence Thomas, the Supreme Court's Most Conservative Justice, Trashes Qualified Immunity Again

  1. She’s guilty of UWC: Universiting While Conservative.

    1. Making money online more than 15OOO$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its FS earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
      on this page…..VISIT HERE

      1. [ PART TIME JOB FOR USA ] Making money online more than 15OOO$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
        on this page…..FAST CASH1 COM

      1. Making money online more than $15k just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
        on this page… Visit Here

        1. Agree, but you can instead get to know more about how to apply for unemployment benefits . They have very good information!!!

      1. If you really need money then ask for an Installment loan . They will help you to get low interests rates.. I know it is a double edge sword but belive me you can repay this!!!

  2. On the congressional level, that rallying cry has primarily been championed by Democrats, tied to police reform legislation that Republicans have resisted.

    Oh weird, because I remember Trump passing a police reform bill through a divided Congress. Funny how now that Republicans are even less relevant, they’re still thwarting democrat’s efforts. Maybe stop carrying water and try searching your own archives for coverage of the First Step Act, Reason.

    1. Yup, also the lions share of the blame goes to the “mostly peaceful protests”. Here’s a idea if you want police reform, don’t demonstrate the need for a strong police presence by burning down cities and looting.

      1. the cops didnt do shit during the riots and you know it

    2. The First Step Act was a mostly good thing. I’m glad Congress passed it, and I’m glad Trump signed it. But unlike a lot of laws, the name is completely accurate in this case. It really was just a first step. There’s a hell of a lot of room left for further improvements, but Reps are mostly resisting further reforms.

    3. Binion is stating the Democrat and statist line with that fake sentence. I’m reconsidering revising my will to reduce or eliminate my donation to Reason as a result of this kind of lying.

      The real truth: the Democrats blamed Trump, his allegedly racist supporters, and “systemic racism”, and the police for how they kill and oppress blacks (and mostly poor people in general) instead of how the Democrats hire, train, manage, and write the police procedures for the police harming blacks in the cities they run. And then then egged on the riots and looting because of it. Gaslighting at it’s worst. It was Democrats who called for defunding the police, instead of reforming how they run their police. This BS is really bad for Reason.

      1. I should add, IMHO the Democrat orders for police to stand down in these riots makes the politician who issued those orders liable for violating the civil rights of people who were harmed by the riots and looting that resulted. If our DoJ was doing its job, it’d be prosecuting the politicians telling the police to let people riot and loot, and if I were a juror, I’d hold Kamala personally liable for bailing them out.

  3. Oh weird, because I remember Trump passing a police reform bill through a divided Congress.

    Did that bill include a revocation of QI?
    And GOP congress-folk are on the record as opposed to revoking QI.

    What exactly is the point you think you are making?

    Fucking republican snowflakes can’t handle any form of criticism even when it’s 100% true. Everything is deflection and pointing to others. Fucking whiners.

    1. Actually, what exactly is the point you think you are making?

      That a bill that tried to address the problems with QI was useless because it didn’t eliminate QI entirely?

      That’s a ‘chucking the baby out with the bathwater’ argument.
      Of course you know that but somehow you think you can fool us with your elementary school-level sophistry.

    2. That sounds exactly like the Demorrhoids. I’m not aware of a single incident of a Demorrhoid saying, “I was wrong and it’s my responsibility.” Even when they control both houses and the WH, it’s always the fault of someone else.

      1. Wow, then you must have been in a hole all those days we had to hear about Obama’s apology tour.

        1. I don’t think that apology tour was about him taking responsibility. In fact he was a bit of his own hero by offering apologies on your behalf and mine.

    3. It’s not perfect, therefore it’s terrible.

      You project a lot.

      Republicans may be stupid sometimes, but Democrats are fucking evil.

      1. It’s not that the First Step Act didn’t do enough on police reform. It’s that it did absolutely nothing on police reform. All it does is sentence reduction in various forms, but mostly in mandatory minimums. That’s all well and good, but it has absolutely nothing to do with holding the king’s men to any form of behavioral standard, no matter how low.

  4. If the liberals need a champion for removing qualified immunity, here’s their guy.

  5. Have I mentioned before that he’s probably our best overall Supreme Court justice of the last couple of generations? Yes, yes I have, but I might as well go ahead and mention it again.

    Thank goodness Ted Kennedy (truly one of the lowest lowlifes to every occupy an influential position in our government during my lifetime) failed in his attempt to destroy this man!

    1. I think maybe we all need a better hero than a guy who only speaks up on matter of principle mostly only on cases where his wife has a direct political and partisan interest.

      1. To be clear, QI is garbage. But conservative jurists have not seen fit to knock it down, and conservative legislators have given it a pass because it serves their interests. Thomas is free to snark about it because doing so has no consequence.

        Reason commentators don’t like it, but the the dislike is a mere pretense: the bargain is that they get to stand against it publicly, while mostly endorsing everyone that upholds it and being a part of organizations that make it a reality, and they all know it every time they take home their paychecks.

      2. Truly a vile and completely dishonest smear.

  6. “Clarence Thomas is no liberal hero”

    Billy Binion never learned what liberalism actually is. Thomas is far more liberal than the authoritarian collectivists that identify as such in America.

    1. Correct.

  7. Qualified immunity is something legislatures should grant (or not), not the Supreme Court. It’s not in the Constitution, in the text or between the lines.

    1. Have you checked the penumbras?

    2. this case is not about
      granting
      QI. It is about whether this high court should take up a case which o its surface, has some dirty coppers walking free when they did obvious dirt to a citizen,and now they skate to go onout there and do it again. And again. And again. Coppers, when they take up the badge AND GUN (and taser) swear an oath to uphold, protect, defend, enfrice, the US and their State constitutions. Shooting someone’s dog which is not a threat just for grins and giggles is NOT doing the aforementioned protecting.
      THE LAW needs changed, ans SCOTUS fobbing this off simply delays that. Had they taken up this case and RULED on the principles of the nasty habit of “cops can do no wrong” (except when they are dealing with a drug addled suicidal grifter dying of his self-administered many-times lethal dose of two lethal and illegal drugs)

      But what ade THAT cop NOT immmune was the burning and looting and destruction of a few billion dolars of some cities TPTB cnnot handle their chosen chaos-mongers taking any heat for the destruction and death. they work in so many cities.

    3. The basic premise behind QI is a lack of mens rea. So the theory goes, if a government actor is trying their best to do the right thing punishing them for reasonable mistakes shouldn’t be allowed. The problem comes in the application (or lack thereof) of what constitutes “reasonable”. You have cops going around purposely failing to educate themselves on laws so that they can shielded by their own ignorance and courts bending over backwards to torture the definition of reasonable action to include everything from theft to wrongful imprisonment, even murder.

      Reasonable officers of average intelligence attempting in good faith to perform their duties shouldn’t be held personally liable for honest mistakes. As has been demonstrated again and again and again and again though is that reasonable officers of average intelligence attempting to perform their duties in good faith seem to be rarer than chicken’s teeth.

  8. “…the high court (SCOTUS) concocted qualified immunity…”
    The SCOTUS created a law, without constitutional authority or any kind of justification. Were they jealous of congresses’ violation of the constitution? Did they want in on the expansion of govt. power, by the govt., for the govt., of the govt.?
    No matter. As T.J. wrote in the “DOI”, “When a govt. becomes oppressive it is the duty of the citizens to abolish or replace it”.
    All we need do is boycott govt. on all levels and let it die of neglect.

  9. Sen. Tim Scott’s police reform bill addresses qualified immunity in a reasonable manner. Police officers do need protection but cities, counties, states and the feds do not. It is the responsibility of the government to hire police officers and if one commits an illegal act the government not the officer should be sued. The government can then deal with their mistake. Officers should have limited immunity for protection when doing their jobs to the best of their ability but not for blatantly disregarding the law and injuring or killing a citizen in the manner described in some of the cases the SCOTUS refused to hear. Giving police the power to injure or kill citizens with impunity is not only completely wrong but immensely stupid.

    1. Why do police officers need protection? Is it really too much to ask that those charged with enforcing the law actually know and follow that law themselves? If anything, I think those that make and enforce the law should be held to a higher standard than an ordinary private citizen, not a lower one. If a cop’s actions are reasonable, then he can defend himself in front of a jury just like anyone else. And let’s face it, many of these cases are so egregious that anyone who would even consider committing such an act has any business carrying a badge and a gun.

    2. Take that lawsuit money right out of the police unions and the pension fund.

    3. Why should any federal action be needed.

      States should make it a state tort for police in their jurisdictions to violate their citizens constitutional rights.

      And they should set up a state insurance pool for municipalities to pay for judgments, and the worse the municipalities record is the more they have to pay into the fund, so they have some skin in the game.

  10. Many if not mostof those ona whinge to retain the principle of QI are also the same lot dancing in the streeets at the rigged “conviction” of a Minneapolis police officer who carefully followed the protocols he learned in recent training on how to handle suspected fatal overdoses of illicit drugs sich as fantanyl. The “suspect killed hiimself by ingesting massive overdoses of two different and very lethal drugs. The officers in question followed the protocols almost to the letter for how to deal with exactly this correctly identified case. And all are facing charges of murder, manslaughter, etc.

  11. Qualified immunity not only has no basis in either the Constitution or statutory law, it’s also positively un-American. I’m pretty sure that one of the reasons for the American Revolution was anger at abuses by unaccountable authorities. The very idea of QI would have been an utter outrage to the Founders.

  12. ‘”Why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question.”‘

    We have never received a satisfactory explanation of why the two deadliest of all drugs (including opiates), tobacco & alcohol, are exempt from the Controlled Substances Act (CSA) [21 U.S.C. § 802(6)] in violation of the Equal Protection Clause; and given that tobacco & alcohol are schedule I & II controlled substances by definition in the CSA.

  13. Tradition, and public preference, and the still fresh reminder that banning alcohol was a resounding public policy disaster.

  14. “Qualified immunity” must be repealed, in spite of your poor example: cop who shot a 10-year-old while aiming at a nonthreatening dog.

    Do you know what ‘tragedy’ means?

    I don’t know what the officer should’ve done tp prevent that tragedy; I wonder if he’s given it a 2nd thought? I don’t know what transpired, but anybody with a gun, whom does not disarm themselves as so directed is kind of a threat; wouldn’t you think?

    Yes, its hard to imagine a 10 year old as a threat, but if he’s got a gun and looks able to pull the trigger; a 2nd thought, could be your last thought.

  15. Thomas has also criticized civil asset forfeiture, a much loved procedure based on outright theft and supported by the right in their effort to “Back the Blue”.

  16. Captivating article! engagement rings Thankful to you for sharing them! I believe you will continue having equivalent shows on share with everyone! I trust numerous people will be dumbfounded to examine this article.

Comments are closed.