Supreme Court

Justice Thomas Takes Another Shot at Qualified Immunity

He repeats his concern that QI doctrine rests on "shaky ground" and imposes a "one-size-fits-all doctrine" that is "an odd fit for many cases," including those involving university administrators.


In today's Orders List, the Supreme Court granted nine petitions for certiorari  in cases that will be heard next term, added an original jurisdiction case to the docket, summarily reversed the grant of a habeas petition by the Eleventh Circuit, and resolved a few outstanding matters involving cases that had been put on hold due to the change in Presidential administration. The Court also rejected certiorari in a number of cases, several of which produced dissenting opinions on statements respecting the certiorari denial.

One such opinion I wanted to highlight was Justice Thomas' statement respecting the denial of certiorari in Hoggard v. Rhodes, a qualified immunity case, albeit one that involves university administrators rather than cops.

Here's the Thomas opinion:

As I have noted before, our qualified immunity jurisprudence stands on shaky ground. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (opinion concurring in part and concurring in judgment); Baxter v. Bracey, 590 U. S. ___ (2020) (opinion dissenting from denial of certiorari). Under this Court's precedent, executive officers who violate federal law are  immune from money damages suits brought under Rev. Stat. §1979, 42 U. S. C. §1983, unless their conduct violates a "clearly established statutory or constitutional righ[t] of which a reasonable person would have known." Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per curiam) (internal quotation marks omitted). But this test cannot be located in §1983's text and may have little basis in history. Baxter, 590 U. S., at ___, ___ (slip op., at 2, 4) (opinion of THOMAS, J.).

Aside from these problems, 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. Ziglar, 582 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 4–5).* This petition illustrates that oddity: Petitioner alleges that university officials violated her First Amendment rights by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, petitioner could engage with students only in a designated "Free Expression Area"—the use of which required prior permission from the school. The Eighth Circuit concluded that this policy of restricting speech around the student union was unconstitutional as applied to petitioner. Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d 868, 879 (2020). Yet it granted immunity to the officials after determining that their actions, though unlawful, had not transgressed "'clearly established'" precedent. Id., at 881.

But 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. See Ziglar, 582 U. S., at ___–__ (opinion of THOMAS, J.) (slip op., at 4–5).

This approach is even more concerning because "our analysis is [not] grounded in the common-law backdrop against which Congress enacted [§1983]." Id., at ___ (slip op., at 5). It may be that the police officer would receive more protection than a university official at common law. See Oldham, Official Immunity at the Founding (manuscript, at 22–23, available at (suggesting that the "concept of unreasonableness [in the Fourth Amendment] could bring with it [common-law] official immunities"). Or maybe the opposite is true. Lee, The Curious Life of In Loco Parentis at American Universities, 8 Higher Ed. in Rev. 65, 67 (2011) (discussing how "[f]rom the mid-1800s to the 1960s" "constitutional rights stopped at the college gates—at both private and public institutions"). Whatever the history establishes, we at least ought to consider it. Instead, we have "substitute[d] our own policy preferences for the mandates of Congress" by conjuring up blanket immunity and then failed to justify our enacted policy. Ziglar, 582 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6).

The parties did not raise or brief these specific issues below. But in an appropriate case, we should reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally.

I think it is only a matter of time before the Court revisits qualified immunity. The Court's liberals are clearly concerned the doctrine encourages impunity within law enforcement, and the Court's originalists and textualists are increasingly aware that the doctrine, at least as currently formulated, lacks a firm constitutional or statutory grounding.

Yet as this opinion indicates, the first crack in the QI edifice might not come in the law enforcement context. Rather, it is quite possible that the first cracks will appear in the public university setting. As Thomas notes, university administrators not faced with the need to make snap judgments under exigent circumstances. They often have university counsel at their side. Moreover, even where there are not Supreme Court cases directly on point, the requirements imposed by the First Amendment and Equal Protection Clause are sufficiently clear that university administrators could be considered to have sufficient notice of what sorts of conduct is or is not acceptable. Thus it would seem that prudential arguments for maintaining QI are less strong in the university setting than they might be in other contexts (even before one considers the question of what sorts of immunity did or did not apply to law enforcement historically).

NEXT: Today in Supreme Court History: July 2, 1908

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  1. Qualified immunity is not a Constitutional doctrine; it is a gloss on a statute. Whether that gloss was right or wrong as an original matter, it has been the law for longer than most Americans have been alive. Congress could change things tomorrow, and could have changed things any time in the last four decades. It didn’t.

    1. Which statute do you think that was? QI applies to civil suits generally, not only to Section 1983 claims.

      1. Not exactly. QI as the federal courts have developed it is specifically about 1983. There is also an equivalent approach to the few Bivens claims the Court recognizes.

        States have their own immunity statutes or doctrines that apply to state law claims brought against officers. A state could get rid of all their immunities and subject officers to standard tort liability if they so chose. Some, like Colorado, have taken steps to reform their immunities.

        And if a federal court was exercising supplemental jurisdiction over state law tort claims as part of a 1983 action, while they might find QI under 1983, they couldn’t apply the same logic to the other state law claims.

    2. Whenever the courts take it up, government employees will make that argument (the Flood v. Kuhn legislative inaction argument).

  2. There should be no immunity for state actors, including judges.

    As Justice Douglas penned it, “[t]o most, ‘every person’ would mean every person, not every person except judges.” Peirson v. Ray, 386 U.S. at 559.

  3. And also, Gorsuch takes a shot at Kelo.

    If the established constitutional rules is truly “sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation” as Gorsuch says, then all transfer payments (social security, welfare) are unconstitutional. They are taking money from me and giving it to another private party. Heck, they are not even paying me just compensation!

    1. You get a clear conscience, paid off in social justice credits. The CCP has already blazed this trail.

    2. As our dear Chief Justice said, “It’s a tax”. And as John Marshal said, “The power to tax is the power to destroy.” And there’s that pesky 16th amendment.

      1. Since the 16th amendment was passed after the 5th, it’s quite obvious that income taxes cannot be considered an unconstitutional taking under the 5th.

        1. Also, as I recall, the original court decision holding income taxes unconstitutional didn’t implicate takings.

      2. It … is a tax. The constitution is very very clear about the ability of congress to tax and spend. In Obamacare, all parties agreed that if it was framed as a tax it would be perfectly constituonal.

      3. I think you all are missing the point. Congress clearly has the authority to tax – but they don’t have unlimited authority to spend the tax money on anything they like. Their spending authority is (or is supposed to be) limited to the things within their constitutional mandate.

        dwb is arguing (I think) that by transferring the money from one citizen to another, that’s an unauthorized spend which makes the original collection retroactively into a taking. It’s a creative argument. Probably not right but not the strawman that you all are knocking down.

        1. My point was only that “settled constitutional rule” doesn’t really mean what Gorsuch think it means.

    3. Anticipating Future CJ Roberts decision: The power to tax is the power to destroy. Eminent Domain and Qualified Immunity are just specific examples of the the Federal Governments power to tax your property, or your nerves, respectively. But don’t worry, I am a judicial minimalist, you should see what the other 8 Justices wanted to write.

  4. If indeed the Storming of the Bastille of QI will occur in the academic sphere, let us give thanks for the arrogant administrators who are providing so many opportunities.

  5. End all immunities. Substitute with professional stndards of due care. The police can police themselves.

    1. Real solution:
      1) End QI
      2) All police officers must carry an equivalent to malpractice insurance
      3) All police officers must no longer be on pension plans but instead on individual retirement accounts.

      The combination of the three changes above will effectively encourage more balanced, legal policework.

      If an officer uses excessive force, they can be sued and held personally liable. Their insurance will pay out, and those officers who are repeat offenders will be forced out of the job due to their own rising insurance costs.

      1. “Real solution:
        1) End QI
        2) All police officers must carry an equivalent to malpractice insurance
        3) All police officers must no longer be on pension plans but instead on individual retirement accounts.”

        4) No more police officers.

        1. You argue that JD’s proposal will drive all police out of the job. Why didn’t that happen with doctors?

          JD’s model is a good one. Yes, it will drive out a lot of police. But it will most heavily drive out the ones who shouldn’t be carrying a badge in the first place. Good cops have no more to fear from the arrangement above than good citizens have to fear from false arrest.

          1. He won’t ever admit it, but Bob likely agrees with the central premise of leftist critiques of policing: that police are simply a violent gang comprised of not very bright people. But, in his view, that’s a good thing because overall they easily take direction and brutalize and intimidate the people he wants brutalized and intimated. So when someone proposes to introduce a high level of professionalism to the project of deploying state violence he thinks it’ll be bad because he’ll lose his goons.

            1. BS flowing heavily.

              Are we going to pay police like doctors?

              He wants to burden them with liability premiums AND attack their pensions. Make every patrol a possible end of their financial security.

              It won’t increase professionalism, it will decrease it by driving out anyone with brains or any other prospects.

              1. Are we going to pay police like doctors?

                Maybe we should. They’re in the business of making life and death decisions.

                “He wants to burden them with liability premiums AND attack their pensions. Make every patrol a possible end of their financial security.”

                Probably a good thing. Then they will realize the enormity of the task they are taking upon themselves. We’re giving them the right to kill us, after all.

              2. Are we going to pay police like doctors?

                If we are going to hold them as accountable as doctors, then I am all for it.

                Hell even if QI stays in place, I would be willing to give them HUGE raises in exchange for removing their job protections from the union contracts.

                THat to me is one of the most under-talked about option.
                If you make it easier to fire bad cops (and get rid of the ability of arbitrators to restore their jobs) I think that would keep police more in line.

                Bigger payout but more to lose if you don’t act right.

                And while we are at it, maybe if the courts didnt protect policies that allow police forces to discriminate against candidates who are too intelligent — we might also see a much more professional police force.

                QI is the big thing, but there are so many other smaller measures that could be done that could reign in some of the more egregious abuses too

          2. You argue that JD’s proposal will drive all police out of the job. Why didn’t that happen with doctors?

            But ending QI says that police officers should be held liable for reasonable mistakes. Do we hold doctors liable for reasonable mistakes?

            1. No. QI is not about the issue of liability for “reasonable mistakes.” All ending QI does is allow cases to go to juries, which can award damages if there are mistakes, and those mistakes are not reasonable.

              1. No. QI is not about the issue of liability for “reasonable mistakes.”

                Yes it is. A “reasonable mistake” is where the police officer makes a good-faith call in an emergency situation where it was not clear whether the person he was dealing with had a constitutional right in this situation, and a court later determines that there was such a right. You seem to be saying that even if the law was unclear it should be possible to hold the policeman personally liable for making the wrong call. In the doctor setting it is that even if what the doctor did was objectively reasonable at the time he still can be held liable. If you agree that police officers should not be held liable for reasonable mistakes, the mistake we are talking about is a mistake in what the law requires, and questions of law do not go to the jury. They are decided by the judge.

        2. What does the form of their retirement plans have to do with anything?

          1. My assumption is that JD thinks IRA balances could be in reach for a malpractice judgement where pension plan balances would not. Losing your career is a serious threat when you’re young or even in the middle of your career. Threatening your retirement keeps even the cops at the end of their careers honest.

            I think JD is correct that pension plan benefits are not reachable because at the likely time of the abuse (that is, during employment), the assets are still owned by the employer (or union). I’m less sure whether IRA balances could be reached in this kind of civil suit. Retirement accounts are protected for a reason.

          2. Bernard,
            You hit on an underlying fact. The “reformers” are mean-spirited.
            Pensions are an important attractor for taking on a hazardous job.
            And the idea that one should compound the removal of pensions with union-busting is another indication of animus.

  6. If the first ruling against QI comes against universities it might never reach law enforcement. Removing it needs to start with law enforcement and then spread out. What a terrible court created out of whole cloth rule.

    1. What a terrible court created out of whole cloth rule.

      Congress enacted Section 1983 against a background of Supreme Court cases dealing with government officials making a mistake in law. For example, in Wilkes v. Dinsman (1848) the Court favorably quoted the precept that it would “be opposed to all the principles of law, justice, and sound policy, to hold that officers called upon to exercise their deliberate judgments are answerable for a mistake in law, either civilly or criminally, when their motives are pure, and untainted with fraud or malice.”

      If Congress had intended that this type of qualified immunity not be available for Section 1983 actions why wouldn’t they have said so in the statute?

      1. That’s disingenuous for multiple reasons, but I’ll just pick two:

        1) Modern QI is exactly the opposite of that precept. QI doesn’t care about the government official’s motives; it’s an objective test.
        2) That standard wasn’t a “type of qualified immunity.” It was a defense.

        QI in its modern form was invented by the Supreme Court in 1982. There is nothing in the text of § 1983 to suggest that Congress wanted any immunity — “every person” means “every person” — but certainly nothing to even remotely hint that Congress thought that government officials should be immune when they act in bad faith.

        1. 1) Modern QI is exactly the opposite of that precept. QI doesn’t care about the government official’s motives; it’s an objective test.

          Look, the idea is that if there was not a clearly established right that the police officer violated then it’s not appropriate to punish him. The approach at the time that Section 1983 was enacted was that police officers were not held liable for mistakes in the law where the mistake was not simply because they didn’t pay attention to the law. Knowing that to be the case, Congress could have negated it in the law if they had meant to.

          2) That standard wasn’t a “type of qualified immunity.” It was a defense.

          What’s the difference between a defense and a type of immunity for present purposes? They both prevent the person from being held liable.

          1. Immunity typically shuts down a case at the pleading stage. Defenses require juries to decide them. (Or, yes, a judge if there are no disputed facts.) It’s the same reason § 230 is so powerful: it’s an immunity, which means that an ICS need not litigate the question of whether something is defamatory. (If § 230 were repealed, that wouldn’t mean that an ICS would be automatically be liable for user content; it would mean that the question of whether the post was defamatory would have to go to a judge or jury.)

            It is unconstitutional for police to use excessive force against someone. That’s the law, and it’s not in dispute. If it’s a defense, you ask a jury to decide whether a particular use of force was excessive. But for QI, a plaintiff rarely gets that far; a judge asks whether it was clearly established in advance that this specific type of application of force was excessive, and if the judge decides it wasn’t, then the case is dismissed immediately.

            So your talk about “mistakes of law” is misplaced — or at least, is relevant to only a very small application of QI. It’s typically about applying law to specific facts rather than debating what the law is.

            Think about a lawsuit over medical malpractice. A patient dies during surgery. Does the surgeon get to say, “A crazy incredibly rare thing happened during surgery that nobody ever taught me how to deal with, and a reasonable doctor would have made the same decisions I did, so the lawsuit should be dismissed”? No. The surgeon gets to tell the jury, “A crazy incredibly rare thing happened during surgery that nobody ever taught me how to deal with, and a reasonable doctor would have made the same decisions I did, so you should find in my favor,” and the jury decides whether he was negligent.

            1. I will agree with you that if it was clearly established that the police officer may not use excessive force, whether he did so should be for the jury.

              Do you agree that a policeman should not be held personally liable if he is charged with violating a constitutional right and it was not clearly established at the time that the claimed constitutional right existed?

              Do you agree that is is a question of law for the judge to decide whether it was clearly established at a given point in time whether a claimed constitutional right existed?

  7. QI is just a bogeyman.

    People are shot by the police because they are criminals who threaten the officer. 30 exceptions a year is no reason to change the law.

    1. If the exceptions are cases of egregious misconduct, torture, and physical violence, the law absolutely should change so that they are not denied justice. These are real people who suffer real harms. If you had even an ounce of morality you would recognize it.

      Why should a child laying on the ground who is shot while a deputy is trying and failing to shoot a family dog be denied justice Bob? What reason is there for that?

      Why was it even a possibility that a child who was forced to masturbate while a police officer took photos could be barred from recovery?

      Why is it acceptable in a society for a handcuffed man to be mauled to death by a dog?

      Rape, torture, murder. You want no remedy for these.

      1. As Adam Server said, for people like Bob and other Trumpkins, the cruelty is the point.

        1. Is their any lib shibboleth you don’t agree with?

          1. Is there any cruelty you don’t countenance?

            1. Can’t tell from your posting here.

      2. LawTalkingGuy, several hundred exceptions out of 10 million+ encounters are still exceptions, QI still lets suits be succesfull, just not at the rate your police hatred requires.

        Eliminating QI mainly will benefit plaintiff lawyers. Making Ben Crumb rich ain’t my thing.

        1. You want to deny justice to a child shot by the police trying to shoot a non-threating dog. You want to deny justice to a handcuff man whose flesh was torn to the bone by a police dog. You think it is okay that two federal judges would have given QI to a police officer for sexual assault and producing child porn.

          If you don’t want to change the law to remedy these outcomes, you are endorsing them. It’s that simple. You countenance cruelty and feel no remorse about it.

          1. Do you need a tissue?

            1. Do you need a brain?

              1. Bob has a brain. He needs a heart, soul, moral compass, etc.

                1. LTG,
                  That is exactly the point.

            2. What is wrong with you?

              Seriously what defect exists in your soul that makes you think cruelty like this is not only not worthy of recompense but that concern over it is worthy of mockery? Do you think this stuff is funny?

              The fact that you think showing any concern over tragedy is worthy of mockery says so much about your character. You are a risible human. An absolute ghoul and sadist.

              1. “Do you think this stuff is funny?”

                No, I think you are funny.

                So full of morality. Well, full of something.

                1. You think it’s funny that I care about cruel acts done to other people. That’s still an indictment of your character.

                  You’re a bad person. Deal with it.

    2. Most QI cases aren’t shootings.

  8. QI is a scam created by the ruling elite to shield them from the peasants who would be unruly in claim of harm thru the courts. Can’t have that! The goy are subdued precisely as the Tulmud directs. USA is gone, give it up.

  9. Thomas is looking for a way to end QI for liberal bureaucrats and university administrators but keep it for police who let dogs maul homeless people and corrections officers who put prisoners in excrement filled cells until they collapse from dehydration.

    1. Under the Thomas view of things, QI wouldn’t be necessary to protect government actors because we would have so few rights to begin with.

  10. Unsurprising that conservatives see university administrators as the big QI problem.

    Because sure, not letting a student set up a table to promote a student organization is just as horrifying as beating up shackled prisoners, letting dogs attack people, etc.

    1. Did you even bother to read the article?

      Of course the conservative justices think that police abuse is a problem. The distinction Thomas is drawing (and that the article clearly describes) is that police are sometimes making these decisions in split-second life-or-death scenarios. That justifies at least some deference. (Not as much as QI gives them but that’s a different argument.) Those conditions of time and danger apply to university administrators precisely never.

      1. The problem with the “split second” argument — setting aside how rare those cases are, even when involving cops — is that the application of QI that is in place now has little to do with it. Let’s say a cop shoots someone, and the victim claims that it violated his rights. The courts will carefully comb the caselaw to see whether they have ruled in this circuit that this precise scenario was an unconstitutional use of force. They will consider whether other cases ruling that force was excessive had the same number of bystanders present, the time of day, the length of time of the encounter, etc., and if all of those match, then, yes, the cop is denied QI, whereas if there are some differences, then he is entitled to it. But: that has absolutely nothing to do with the cop’s decision making. He didn’t consider all, or any, of those cases. The only thing the cop was thinking was whether in his own mind shooting was necessary/justifiable. (And maybe whether it’s being captured on video.) So saying, “It’s unfair to hold him liable if no court ever told him that it was unconstitutional” makes no sense.

        Indeed, that’s even more true in the “split second” scenario. The university administrator does have time to look at the caselaw (or, more realistically, consult with a lawyer) before making a decision, so QI makes more sense if there’s no case telling him he can’t do something.

        1. You say that police officers making split-second decisions should get less CI protection than officials who have time to have their legal advisors research the question? Misunderstanding the law is clearly less justifiable in the latter situation. The question in the split-second police situation has got to be what a good-faith evaluation in the moment would disclose. I don’t see the relevance of the fact that the actual requirements of the law can only be arrived at after a complex legal analysis. I agree that immaterial differences between this situation and prior ones should be disregarded. The question should be the reasonableness of actions taken in the moment. If they were actually reasonable he should not be held liable.

          The Court should also take steps to stop lower courts from saying that it is not established that the defendant had X constitutional right but we’re not going to decide the question here. In Pearson v. Callahan lower courts were given discretion to decide the question for the benefit of future litigants. One suggestion is that if the Supreme Court required lowers courts, in both published and unpublished opinions, to give a reason for declining to decide the question it would have the effect of deciding more of those questions.

          1. Oops, improperly closed the bold.

    2. “Unsurprising that conservatives see university administrators as the big QI problem. ”
      Nonetheless one has to start somewhere.
      In the final analysis, who are the champions of QI reform in our Congress? Which of our elected representatives is willing to face-down the police unions?
      Until you can name dozens, we will continue to live with excessive police brutality and callous disregard of citizen rights,

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