Noteworthy Qualified Immunity Settlement

The state pays (and generously) to avoid the pending cert. petition in Allah v. Milling

Earlier this summer, I posted about a pending cert. petition in Allah v. Milling that had prompted two interesting amicus briefs encouraging the Supreme Court to reevaluate its doctrine of qualified immunity—one by a cross-ideological group of public interest organizations, the other by a group of scholars (including me). The petiton had been pending for this fall, but Monday the case was instead dismissed by consent of the parties.

That would be quite disappointing, were it not for the reason the case was dismissed—apparently after the cert. petition and briefs were filed, the state decided that it was not interested in trying to defend its victory in the Second Circuit, and negotiated a settlement with the plaintiff. Indeed, I am told that the state ended up settling for even more than the plaintiff had originally won at trial, so it was as much of a victory for the plaintiff as he could have hoped for. That's extremely heartening for an individual claim to justice, even if it leaves the broader issue untouched for now.

So while the settlement does mean that the Supreme Court won't have the option of granting the question presented in this case, if another good vehicle comes along, I suspect there will be new amicus briefs.