The Supreme Court handed down a brief opinion on Monday holding that a California police officer is immune from a lawsuit alleging he used excessive force while helping arrest an armed suspect.
Though the Court’s decision in Rivas-Villegas v. Cortesluna is fairly straightforward — the justices held that Officer Daniel Rivas-Villegas “did not violate clearly established law” when he briefly used his knee to hold down a suspect who was armed with a knife and who had allegedly threatened his girlfriend and her two children with a chainsaw — it contains two sentences that should alarm police reformers. Both sentences suggest that there is support at least among some of the justices to significantly expand police officers’ immunity from federal civil rights lawsuits.
Government officials accused of violating federal law are entitled to “qualified immunity,” meaning that they cannot be sued unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”
In Harlow v. Fitzgerald (1982), the Court laid out several reasons this doctrine exists. Qualified immunity protects public employees from the “expenses of litigation.” It ensures that the stress of litigation does not divert “official energy from pressing public issues,” or deter “able citizens from acceptance of public office.” At least according to Harlow, qualified immunity also reduces “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”
But qualified immunity is not supposed to be absolute immunity. Again, officers can still be sued for violating clearly established law.
Under existing precedents, an officer may still be sued if their actions clearly violate a legal rule laid out in a Supreme Court decision that has not been overruled. An officer also is not entitled to qualified immunity if their actions clearly violate a legal rule laid out by the federal appeals court (also known as a “circuit” court) that oversees the jurisdiction where the officer is sued.
A passage in the Court’s new decision in Rivas-Villegas, however, floats a radical idea: that officers may be entitled to qualified immunity even if they violate clearly established circuit court precedents. The opinion was unsigned, which is a common practice when the justices dispose of a case in a brief decision without hearing argument on the case, so we don’t know who wrote the opinion or who inserted the two significant sentences into it.
Twice, the Rivas-Villegas opinion uses nearly identical language — “even assuming that Circuit precedent can clearly establish law” and “even assuming that controlling Circuit precedent clearly establishes law” — that implies it is uncertain whether a circuit court decision is sufficient to overcome qualified immunity. These lines open the door to a new regime, where victims of police violence can no longer rely on appellate court decisions to breach an officer’s partial immunity to suit.
At least as recently as Lane v. Franks (2014), a unanimous Supreme Court indicated that circuit court precedent can overcome qualified immunity. Six of the justices who joined Justice Sonia Sotomayor’s unanimous decision in Lane — Sotomayor, Chief Justice John Roberts, and Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and Elena Kagan — are still on the Court today.
If the justices do reject the position they took in Lane, that would be a major shift in the law that would significantly expand police officers’ immunity from litigation. That’s because the 13 federal circuit courts collectively handle over 50,000 cases a year, while the Supreme Court normally only decides about 60 to 80 precedent-setting cases in the same period.
If civil rights plaintiffs can no longer rely on circuit court precedent to show that a particular legal rule is “clearly established,” they will lose an enormous body of law that currently can be used to breach qualified immunity.
How disregarding circuit courts will make it harder to hold police accountable
Plaintiffs seeking to hold officers accountable for their illegal conduct already face enormous obstacles. As the Supreme Court held in Mullenix v. Luna (2015), such plaintiffs cannot overcome qualified immunity unless their legal rights are clearly established, and “a clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’”
Currently, these plaintiffs can rely on multiple legal authorities, including circuit court precedents, to show that a particular right is “clearly established.” Take away their ability to rely on circuit court decisions and these plaintiffs will lose nearly all of the case law that they can currently point to in order to breach qualified immunity.
The circuit courts, moreover, do not simply hear vastly more cases than the Supreme Court — they also tend to hear a greater diversity of cases. A party that loses in a federal trial court has a right to appeal that decision to federal circuit courts, which are not allowed to turn away cases that they deem to be too easy or too uninteresting.
The Supreme Court, by contrast, has discretion to decide nearly all of the cases that it hears — and it uses this discretion fairly mercilessly. In a typical term, the Court receives between 7,000 and 8,000 petitions asking it to hear a case, but typically grants fewer than 80 of these petitions. One of the most common reasons the Court agrees to hear a case is if the case presents a sufficiently difficult legal question that two circuit courts disagree about the correct answer.
The Supreme Court, in other words, typically hears the hardest cases, while circuit courts hear thousands of much easier cases.
But that means that, if an officer commits a legal violation so obvious that any reasonable judge will agree that the officer violated the constitution or a federal statute, that officer’s case will most likely never be heard by the Supreme Court. Thus, if the Supreme Court were to hold that circuit precedents cannot be used to breach qualified immunity, officers who engage in obviously unconstitutional actions may never be held accountable because there will never be a Supreme Court decision clearly establishing that their actions are illegal.
In addition, many of the Supreme Court’s precedents governing the use of force by police are extraordinarily vague. As the Court acknowledges in Rivas-Villegas, the justices’ seminal excessive force decisions in Tennessee v. Garner (1985) and Graham v. Connor (1989) announce legal standards that “are cast ‘at a high level of generality.’”
Graham, for example, held that the question of when police conduct crosses the line into excessive force “is not capable of precise definition or mechanical application,” and that it involves factors such as “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
In the 32 years since Graham was decided, federal circuit courts have placed a fair amount of meat on these bare bones. These lower court decisions make up the bulk of the law answering questions like how severe a crime needs to be to justify the use of additional force, or what is a sufficient threat to officer safety to justify such force.
If civil rights plaintiffs cannot rely on circuit court decisions to answer such questions, countless lawsuits that would otherwise prevail are doomed.
Why a few words in a longer decision should ring alarm bells
In many cases, when the Supreme Court uses the kind of coy language it used in Rivas-Villegas, implying that the correct answer to a legal question is unsettled when it is actually well-established, that is because one or more justices want to unsettle the law.
Such language is a not-too-subtle signal to lawyers that they should start bringing cases making a particular legal argument — in this case, the argument that circuit court precedents cannot be used to breach qualified immunity.
Just in case there is any doubt: Current law indicates that circuit court decisions may be used to breach qualified immunity.
For several years in the 2000s, beginning with the Court’s decision in Saucier v. Katz (2001), the justices required circuit courts to follow a two-step process in cases involving qualified immunity. First, the court was required to determine whether the officer actually violated the law. Then, if the officer’s actions violated the law, the circuit court would determine whether it was “clearly established” that the law was violated.
This procedure, Saucier explained, “permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity” — that is, it allowed circuit courts to expand the universe of legal questions with “clearly established” answers, and thus reduce the universe of cases where officers could claim qualified immunity.
Though the Court abandoned this two-step framework in Pearson v. Callahan (2009), which permitted lower courts to consider whether a right is clearly established without determining if that right had actually been violated in a particular case, Pearson largely rooted its holding in concerns about judicial efficiency. Saucier’s two-step process, Pearson explained, “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.”
The Court’s 2012 decision in Reichle v. Howards (2012) does include a line suggesting that under certain circumstances, a circuit court decision may not be enough to breach qualified immunity — but the Court clarified two years later, in Lane, that circuit courts may create “clearly established” law. Lane includes an extensive discussion of whether a particular interpretation of the First Amendment was “clearly established” in the 11th Circuit — a discussion that makes no sense unless circuit court decisions are sufficient to overcome such immunity.
So the language in Rivas-Villegas suggesting that circuit court precedents cannot be used to overcome qualified immunity is quite odd. It conflicts with a fairly recent, unanimous Supreme Court decision. And it would leave many victims of excessive police force without recourse.
The odd language in Rivas-Villegas is also a bit surprising because, not that long ago, civil rights lawyers had good reason to hope that the Court might back away from an expansive qualified immunity doctrine. In a 2017 opinion, Justice Clarence Thomas — arguably the Court’s most conservative member — wrote that his Court should “reconsider our qualified immunity jurisprudence.” He followed up that statement with a 2020 opinion arguing that there “likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe.”
Now, however, the Supreme Court is floating a change in course — one that would expand qualified immunity considerably.