Almost all the Roberts Court’s recent qualified-immunity opinions, including many summary reversals, have protected police officers when the lower courts denied qualified immunity. See, e.g, Stanton v. Sims, 134 S.Ct. 3 (2013) (per curiam); Carroll v. Carman, 135 S.Ct. 348 (2014) (per curiam); Taylor v. Barkes,135 S.Ct. 2042 (2015) (per curiam); Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam); White v. Pauly, 137 S.Ct. 548 (2017) (per curiam). University of Chicago law professor William Baude has described this trend in the Court’s decisions as a “crusade” in which the Roberts Court is “doubling down” on qualified immunity, “enforcing it aggressively against the lower courts” in a manner that “sends them a signal that they should drift toward immunity.” William Baude, “Is Qualified Immunity Unlawful?” California Law Review, forthcoming.
This unmistakably anti-plaintiff pattern drew the attention of Justice Sotomayor in a 2017 dissent from a denial of certiorari in Salazar-Limon v. City of Houston, a section 1983 suit in which the Fifth Circuit affirmed qualified immunity for a police officer who shot and killed a man who allegedly reached for his waistband during the encounter. Justice Sotomayor argued that the district court should not have granted summary judgment in these circumstances, given the factual dispute regarding the nature of the threat, and also called attention to the “disturbing” double standard in the Court’s recent summary reversals:
Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court's resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “society as a whole”, than does the erroneous denial of summary judgment in such cases. We took one step toward addressing this asymmetry in Tolan. We take one step back today. 137 S.Ct. 1277 (2017) (Sotomayor, J, joined by Ginsburg, J., dissenting from denial of certiorari).
In response to Sotomayor’s complaint, Justice Alito rejected the charge that there is a bias in favor of officers, emphasizing that in five of the summary reversals favoring officers that Sotomayor cites, there was no published dissent. Yet it is notable that here Alito wrote separately to defend the Court’s limited role in second-guessing summary judgment despite his involvement in many summary reversals to protect officers. This is precisely the double standard to which Sotomayor sought to draw attention.
Sotomayor’s concern is noteworthy in part because so few of the Court’s justices appear to be concerned about the Court’s qualified-immunity doctrine. But concerns about that doctrine are becoming more pronounced. Although comprehensive reforms of section 1983 were not a prominent feature of the debates concerning police accountability after the 2014 fatal shooting of Michael Brown in Ferguson, Missouri, a few advocates and judges have recently called for the repeal of the qualified-immunity doctrine. See, e.g., Lynda G. Dodd, “What’s Missing in the Police Reform Debate?” Balkinization blog, part one and part two; Judge Jon O. Newman, “Here’s a Better Way to Punish the Police: Sue Them for Money,” Washington Post (June 23, 2016); Matthew Segal, “Beyond #BlackLivesMatter: Police Reform Must Be Bolstered by Legal Action,” Guardian.com (July 27, 2016) (suggesting that qualified immunity is one of the legal doctrines “we must seek to tear down.”). Empirical scholarship by UCLA Law Professor Joanna C. Schwartz in the January 2018 issue of the Yale Law Journal has shown that the qualified-immunity doctrine does not adequately serve the purposes it was meant to promote, and other critics, including Judge Lynn Adelman in the fall 2017 issue of Dissent Magazine, have called for congressional reforms to section 1983.
For all the criticism that qualified immunity has received as a judge-made doctrine unmoored from the text and history of section 1983, one of the stronger pragmatic policy-based justifications for the doctrine is rooted in concerns that, without qualified immunity, the underlying constitutional rights involved in section 1983 litigation would likely be interpreted in an unduly narrow fashion. Qualified immunity, in other words, may help prevent or at least limit what NYU Law Professor Daryl Levinson has called the process of “remedial equilibration.” However, as I argue in my forthcoming book Taming the Rights Revolution: The Supreme Court, Constitutional Torts, and the Elusive Quest for Accountability (Cambridge University Press), the Court’s qualified-immunity doctrine has never really successfully served that function. Nor do the Court’s efforts to narrow rights doctrines serve to “equilibrate” or preserve the broader procedural framework for remedies under section 1983 and Bivens. Instead, the Rehnquist and Roberts Courts have pursued both these projects—limiting rights and remedies—at the same time.
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