The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The Supreme Court's Continuing Immunity Crusade

A few thoughts on today's summary reversal in Kisela v. Hughes.


Today's "dog bites man" story from the Supreme Court is a summary reversal in Kisela v. Hughes, the latest reversal of a Ninth Circuit opinion that had denied qualified immunity to a police officer. An Arizona police officer shot a woman who was holding a kitchen knife because he (seemingly mistakenly) believed that she was a threat to her roommate, who was standing about six feet away. In a per curiam opinion, the Supreme Court held that the police officer could not be held liable for the unreasonable use of deadly force, because it was "far from an obvious case" in light of the urgency of the situation and the woman's strange behavior. By my count, this is the fifth such summary reversal in the past four years. (It also means that a list of qualified immunity cases in an article I published in February is already out of date.)

However, I was somewhat heartened to see a dissent by two Justices (Sotomayor and Ginsburg). The dissent argued that the majority had "misapprehend[ed] the facts and misapplie[d] the law," and that a jury could have found that the use of deadly force was clearly unreasonable. The dissent also went on to make a second point, however, one that I think is quite important to emphasize:

For the foregoing reasons, it is clear to me that the Court of Appeals got it right. But even if that result were not so clear, I cannot agree with the majority's apparent view that the decision below was so manifestly incorrect as to warrant "the extraordinary remedy of a summary reversal." Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 512–513 (2001) (Stevens, J., dissenting). "A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting); Office of Personnel Management v. Richmond, 496 U. S. 414, 422 (1990) ("Summary reversals of courts of appeals are unusual under any circumstances"). This is not such a case. The relevant facts are hotly disputed, and the qualified immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear. This unwarranted summary reversal is symptomatic of "a disturbing trend regarding the use of this Court's resources" in qualified-immunity cases. Salazar-Limon v. Houston, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from denial of certiorari) (slip op., at 8). As I have previously noted, this Court routinely displays an unflinching willingness "to summarily reverse courts for wrongly denying officers the protection of qualified immunity" but "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." Id., at ___–___ (slip op., at 8–9); see also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) ("[N]early all of the Supreme Court's qualified immunity cases come out the same way—by finding immunity for the officials"); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.

The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.

It is important to remember that the Supreme Court hears only a small and dwindling number of cases—less than one in 100 of the cases that it is asked to hear will ever get a determination on the merits. Most of those cases, according to the Court's rules and practices, will be cases where lower courts are divided on the law or an important legal issue is otherwise unsettled. These summary reversals are a notable, and sometimes explicit, exception. The Court takes a comparatively large number of factbound cases that present no lasting legal issue other than whether the Ninth Circuit got it wrong again.

I have criticized the Court's qualified immunity doctrine at length, but I do understand that one might disagree, especially if one believes in evolving judge-made law (see this draft response from Hillel Levin and Mike Wells) or might think the issue so settled by stare decisis that my critiques are merely academic. Still, it is worth noting that the Court treats qualified immunity not just as ordinary settled law, but as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court's attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.

I remain unconvinced that this special legal treatment has a good legal basis.