The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct (2023)

For years, the Supreme Court has sent a clear message to lower courts: Police officers can’t be sued for violating someone’s constitutional rights unless the specific actions at issue have previously been held unconstitutional. Police, the Court has argued, need “breathing room to make reasonable but mistaken judgments about open legal questions.” The trouble is that no matter how egregious the conduct might seem, so long as a plaintiff cannot find a prior court decision declaring similar behavior unconstitutional, a court cannot hold officers accountable. But in the past few months, following a summer of protests against police violence, the Supreme Court seems to be quietly changing its message.

When the Supreme Court first created qualified immunity, in 1967, it was described as a protection for officers acting in good faith. Today, qualified-immunity doctrine has nothing to do with whether officers acted in good faith. Instead, the keystone is whether officers violated what the Court calls “clearly established law.” And, in recent years, the Court has insisted that the law is only “clearly established” if the Supreme Court, the court of appeals for that jurisdiction, or a consensus of federal courts around the country has previously held virtually identical conduct to be unconstitutional.

Eric Schnurer: Congress is going to have to repeal qualified immunity

The Court has repeatedly chided lower courts for denying qualified-immunity motions, explaining in a 2017 opinion that it had “issued a number of opinions reversing federal courts in qualified immunity cases” in recent years, but that it was “again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality,’” and should instead “be ‘particularized’ to the facts of the case.”

(Video) Originalism: A Matter of Interpretation

Lower courts have gotten the message. Every year, they have issued a steady stream of opinions granting qualified immunity to law-enforcement officers who have engaged in egregious behavior. Qualified immunity has been granted to officers who sicced a police dog on a man who had surrendered and had his hands in the air, officers who shot a 10-year-old boy in the leg while trying to hit his unthreatening dog, and officers who stole $225,000 in cash and rare coins when executing a warrant. Courts dismissed civil suits against all of these officers—not because they hadn’t violated the Constitution, but because there wasn’t a prior case in which officers had violated the Constitution in the same way, leaving no “clearly established” precedent (by the Supreme Court’s definition) that the behavior was wrong.

Yet despite the strength of qualified immunity, its armor has begun to crack. Justice Sonia Sotomayor criticized qualified immunity in 2015 for “sanctioning a ‘shoot first, think later’ approach to policing.” In 2017, Justice Clarence Thomas suggested that his colleagues reconsider qualified-immunity doctrine because it has no legal basis. In lower courts, judges appointed by Republicans and Democrats have offered scathing critiques of the doctrine. Judge Don Willett, a Donald Trump appointee, wrote that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—so long as they were the first to behave badly.”

Read: How to actually fix America’s police

(Video) The Supreme Court is a Big Part of the Problem: Police State Edition

Legal scholars and advocacy groups have repeatedly petitioned the Supreme Court to abolish or reform qualified-immunity doctrine. In its 2019–20 term, the Supreme Court took months to decide whether to hear one or more of the many qualified-immunity cases pending before it—a hesitation some took as a sign that the Court might finally act.

Then COVID-19 hit. And then George Floyd was killed by Derek Chauvin. Protesters across the country carried hand-drawn signs calling for an end to qualified immunity. Bills to eliminate qualified immunity were introduced in the House and Senate. But congressional Republicans opposed these legislative efforts. Senator Tim Scott called qualified-immunity reform a “poison pill” that was “off the table.”

In June 2020, amid this fervor and speculation, the Supreme Court declined to hear all the pending qualified-immunity cases on its docket. Advocates viewed that step as an indication that the Court would take no action on qualified immunity, and turned their attention to Congress and the states.

(Video) Higher courts: Appellate jurisdiction versus original jurisdiction!

But then, on November 2, 2020, the Supreme Court issued a short, unsigned opinion in a case called Taylor v. Riojas, brought by a prisoner who was kept in a pair of “shockingly unsanitary cells”—one of which was “covered, nearly floor to ceiling, in massive amounts of feces”—for six days. The Supreme Court reversed the lower court’s decision granting qualified immunity to the corrections officers because “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”

David H. Gans: The 14th Amendment was meant to be a protection against state violence

Only once before had the Supreme Court ruled that qualified immunity could be denied in the absence of a prior court opinion on point. In that 2002 case, Hope v. Pelzer, the Court ruled that officers did not need to consult a court decision to know that it was wrong to leave a prisoner shackled to a hitching post all day beneath the Alabama sun—such conduct was obviously unconstitutional. Since 2002, the Court had only paid lip service to the notion that qualified immunity can be defeated without a prior case on point.

(Video) The End of Policing, Chapter 1 (The Limits of Police Reform)

The Court’s unsigned opinion in Taylor revived the notion in Hope that qualified immunity could be denied if a constitutional violation is obvious, even if the precise fact pattern is novel. But the opinion did not indicate what impact the Court imagined Taylor would have—whether it was an extraordinary decision responsive to extraordinary facts that would be quickly ignored by the Court (as Hope has been), or whether it reflected a shift in the Court’s thinking about qualified immunity.

Just last week, the Supreme Court offered a clue. The case before it was McCoy v. Alamu, in which a Texas prisoner, Prince McCoy, alleged that a corrections officer sprayed him in the face with mace “for no reason at all.” When the Fifth Circuit Court of Appeals granted the officer qualified immunity in February 2020, it relied heavily on Supreme Court precedent, writing that “the pages of the United States Reports teem with warnings about the difficulty of showing that the law was clearly established” for qualified-immunity purposes. But the Supreme Court reversed the circuit court, instructing it to reconsider its decision in light of Taylor.

The Supreme Court did not write an opinion in McCoy; it merely issued a four-line summary disposition vacating the lower court’s opinion and sending it back. But the Court’s reliance on Taylor in its order in McCoy suggests that the Court does not view Taylor as an aberration. Instead, the Court appears to be sending a message that lower courts can deny qualified immunity for clear misconduct, even without a case with identical facts.

(Video) Chapter 1 from The End of Policing by Alex S Vitale

This may be how the Supreme Court finally takes action on qualified immunity—not with a sweeping, landmark decision, but with a subtle message, heard by civil-rights lawyers and judges who are listening, that it is stepping back from its most robust depictions of qualified immunity’s power.

Perhaps the Court is choosing this quieter path strategically, out of concern that disrupting established precedent on qualified immunity could be used as justification to disrupt the law in other areas. After all, the Court’s decision in Taylor is not reversing anything—it is just reaffirming a legal proposition that had been in hibernation. Perhaps the justices have been unable to agree on whether qualified immunity should be abolished, or how significantly it should change. Or perhaps the justices did not want to fully enter the political fray.

Whatever the reason, the Court is indicating a change. And people are responding: In less than four months on the books, Taylor has been cited in at least 20 cases and more than 30 briefs. Now, with McCoy underscoring Taylor’s directional shift, more advocates will invoke Taylor when opposing qualified-immunity motions, and argue that qualified immunity’s protections should not turn on the presence or absence of prior court decisions in clear cases. Trial and appellate judges sympathetic to this view—who believe that the Supreme Court’s qualified-immunity decisions have gone too far—will now be able to cite both Hope and Taylor in support of qualified-immunity denials. Taylor can make a meaningful difference, even if it doesn’t make a big splash.

(Video) HLS Library Book Talk | Claire Finkelstein, "Sovereignty and the New Executive Authority"


What did the Supreme Court rule about suing police? ›

WASHINGTON — The Supreme Court on Thursday ruled that law enforcement officers can't be sued when they violate the rights of criminal suspects by failing to provide the familiar Miranda warning before questioning them.

What was the Supreme Court decision in Graham v Connor? ›

The U.S. Supreme Court in Graham v. Connor (1989) determined that "objective reasonableness" is the Fourth Amendment standard to be applied in assessing claims of excessive force by police; this study analyzed the patterns of lower Federal court decisions in 1,200 published Section 1983 cases decided from 1989 to 1999.

What are the three factors of Graham v Connor? ›

Yet, the current test, developed under Graham v. Connor, for whether officers' use of force is excessive during an arrest considers only three factors: severity of the crime, immediacy of the threat, and resistance to arrest or attempts to flee.

What is the objective of the Supreme Court? ›

As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

Does the Supreme Court make it easier to sue police? ›

Supreme Court makes it easier to sue police when criminal charges are dropped. In order to sue, a defendant doesn't have to be found not guilty by a judge or jury and prosecutors don't have to state that they wrongly filed charges, the court said.

Did the Supreme Court say police don't have to protect? ›

The U.S. Supreme Court has also ruled that police have no specific obligation to protect. In its 1989 decision in DeShaney v.

What are the 4 Graham factors? ›

They are not a complete list and all of the factors may not apply in every case. The Graham factors are the severity of the crime at issue; whether the suspect posed an immediate threat; and whether the suspect was actively resisting or trying to evade arrest by flight.

What did the Supreme Court determine about all use of force claims against in Graham v Connor? ›

Connor. The Court held, “…that all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its objective reasonableness standard…”

What was the result of the Supreme Court decision in Scott v Harris? ›

The U.S. Supreme Court (8-1 vote) held that a police officer's attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious bodily injury or death.

What is Graham v Connor a reasonable approach to excessive force claims against police officers? ›

Held: All claims that law enforcement officials have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard.

What were the 4 factors in Graham vs Connor? ›

The need for the application of force; The relationship between that need and the amount of force that was used; The extent of the injury inflicted; and. Whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.

What are the 3 factors the Supreme Court's consider when deciding if they accept a case? ›

Three factors must be present before the U.S. Supreme Court will review a state court decision:
  • A substantial federal question must be present. Must be a real question. ...
  • The federal question must be crucial to the decision. ...
  • The losing party must have exhausted all state remedies.

What are the 3 responsibilities of the Supreme Court? ›

Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases.

Which two laws did the Supreme Court declare to be unconstitutional? ›

1857 Dred, Scott v. Sandford, 19 How. 393. Declared unconstitutional the "Missouri Compromise", Act March 6, 1820, on the ground that an act which prohibited a citizen from owning certain property in terri- tory north of a certain line and granted the right to others was not warranted 'by the Constitution.

What are three functions of the Supreme Court? ›

  • Case deciding.
  • Administrative.
  • Regulatory.
Feb 13, 2022

Does the Supreme Court lack enforcement power? ›

The Supreme Court has no power to enforce its decisions. It cannot call out the troops or compel Congress or the president to obey. The Court relies on the executive and legislative branches to carry out its rulings. In some cases, the Supreme Court has been unable to enforce its rulings.

Can I sue a Supreme Court justice? ›

Though judges have immunity from lawsuit, in constitutional democracies judicial misconduct or bad personal behaviour is not completely protected - total impunity is in fact considered contrary to the rule of law.

Can you sue a U.S. Supreme Court justice? ›

Most of the time, however, judges have absolute immunity, which protects them from personal lawsuits. The principle of absolute immunity shields government officials from being sued while they serve in an official capacity, and it extends to judicial officers including court judges.

Are police protected by immunity? ›

Summary Qualified Immunity. A Summary is a quick read to increase your knowledge of a topic. The doctrine of qualified immunity protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right.

Did the Supreme Court say there is no right to privacy? ›

The right to privacy is not mentioned in the Constitution, but the Supreme Court has said that several of the amendments create this right.

Did the Supreme Court rule that police no longer have to read Miranda rights? ›

The Miranda warning originates from the landmark Supreme Court case Miranda v. Arizona. The 1966 ruling established that law officials are required to inform citizens of their Miranda rights prior to questioning or interrogation.

Is excessive force a violation of the 4th Amendment? ›

Excessive force violates the Fourth Amendment of the U.S. Constitution, which forbids unreasonable searches and seizures by law enforcement. Victims of excessive force by police can pursue a Section 1983 claim against the officer and potentially their employer. Section 1983 is a federal law (42 U.S.C.

What happened in the Terry vs Ohio case? ›

In this case, the Court concluded that the Fourth Amendment did not prohibit police from stopping a person they have reasonable suspicion to believe had committed a crime, and frisking that person if they reasonably believe that person to be armed.

What is Johnson v Glick? ›


What kind of force is automatically unreasonable? ›

Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure. Unreasonable force refers to situations when government officials legally entitled to use force exceed the necessary minimum amount to diffuse an incident or to defend others or themselves from harm.

What was the ruling in Bailey v United States? ›

Conclusion: The Supreme Court of the United States held that the rule in Summers was limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.

What was one of the most important Supreme Court cases that decided what level of force was lawful or reasonable came from the case of? ›

A prior Supreme Court decision, Graham v. Conner, held that all force used by a police officer in the line of duty must be objectively reasonable.

What does Scott v Harris say? ›

Harris, 550 U.S. 372 (2007) The Fourth Amendment does not prevent a police officer from ramming a fleeing suspect's car to end a high-speed chase, notwithstanding the risk of serious harm to the suspect.

What was the Court decision in Cooper v Harris? ›

Cooper v. Harris, 581 U.S. ___ (2017), is a landmark decision by the Supreme Court of the United States in which the Court ruled 5–3 that the North Carolina General Assembly used race too heavily in re-drawing two Congressional districts following the 2010 Census.

What did the Supreme Court case Texas v White decide? ›

White, 74 U.S. 700 (1868) States do not have the right to unilaterally secede from the United States, so the Confederate states during the Civil War always remained part of the nation.

What is one of the main issues of Graham v Connor? ›

He filed a federal lawsuit against Officer Connor and other officers and alleged that the officers' use of force during the investigative stop had been excessive and violated Graham's civil rights. The outcome of the case was the creation of an "objective reasonableness test" in examining an officer's actions.

What are the three most common claims brought against police officers according to the Findlaw U.S. Code Section 1983? ›

The most common claims brought against police officers are: False arrest (or false imprisonment) Malicious prosecution. Unreasonable/excessive force.

What is the three part test on the reasonableness of police use of force? ›

The reasonableness of the use of force should also be evaluated by considering (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

What are the Graham factors of police? ›

The Graham factors are the severity of the crime at issue; whether the suspect posed an immediate threat; and whether the suspect was actively resisting or trying to evade arrest by flight. The “severity of the crime” generally refers to the reason for seizing someone in the first place.

What are the 3 factors in Graham v. Connor that still govern police use of force? ›

Yet, the current test, developed under Graham v. Connor, for whether officers' use of force is excessive during an arrest considers only three factors: severity of the crime, immediacy of the threat, and resistance to arrest or attempts to flee.

What was Graham v. Connor easy summary? ›

The Supreme Court, in Graham v. Connor, ruled that all police stops are subject to the Fourth Amendment because all police stops constitute a seizure and must therefore be reasonable. The Constitution prohibits unreasonable search and unreasonable seizure.

Can the president overturn a Supreme Court decision? ›

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court.

Why would the Supreme Court remand a case to a lower court? ›

Improper rulings, errors in procedure, or the exclusion of admissible evidence may result in a lower court's decision being overturned and sent back for further action.

What is the most important legal influence on Supreme Court decisions? ›

Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process. But the most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of its rulings.

What are 2 responsibilities of the Supreme Court? ›

First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power.

What are the three main purposes of the Supreme Court quizlet? ›

Describe the three decision-making tasks of a Supreme Court justice. The three tasks are deciding which cases to hear, deciding individual cases, and determining an explanation for the decision of the Court.

What gives the Supreme Court the power to declare laws unconstitutional? ›

Section 2 of Article III gives the Supreme Court judicial power over “all Cases, in Law and Equity, arising under this Constitution”, meaning that the Supreme Court's main job is to decide if laws are constitutional.

Why did the Supreme Court declared the New Deal unconstitutional? ›

The Supreme Court, by an 8-1 margin, agreed with the oil companies, finding that Congress had inappropriately delegated its regulatory power without both a clear statement of policy and the establishment of a specific set of standards by which the President was empowered to act.

What is the main purpose of the Supreme Court? ›

Although the Supreme Court may hear an appeal on any question of law provided it has jurisdiction, it usually does not hold trials. Instead, the Court's task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied.

What is the primary purpose of the Supreme Court? ›

As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

What did the Supreme Court rule about police in 2005? ›

Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order, which had led to the murders of a woman's three children by her estranged husband.

What did the 2005 Supreme Court rule on police protection? ›

In 2005, the U.S. Supreme Court ruled that police did not have a constitutional duty to protect a person from harm. That ruling overturned a federal appeals court in Colorado that allowed a lawsuit to stand against a town when its police refused to protect a woman from her husband.

What did the U.S. Supreme Court rule about police officers in the case of U.S. v Drayton? ›

In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

What did the U.S. Supreme Court rule about police in the case of U.S. v Hayden 1967 )? ›

Warden v. Hayden, 387 U.S. 294 (1967), was a United States Supreme Court case that held that 'mere evidence' may be seized and held as evidence in a trial, allowing such evidence obtained in a search to be used. This finding reversed previous Supreme Court decisions such as Boyd v.

What Supreme Court decision changed the way police would do their business? ›

Miranda v.

The landmark case is known for establishing a new code of conduct for the country's police force. The decision came from the overturned conviction of Ernesto Miranda by the Supreme Court.

What did the Supreme Court rule in 1997? ›

On June 26, 1997, the United States Supreme Court unanimously rejected any constitutional right of terminally ill patients to physician assisted suicide.

What did the Supreme Court rule in 1995? ›

In United States v. Lopez (1995), the Supreme Court ruled that Congress had exceeded its constitutional authority under the Commerce Clause when it passed a law prohibiting gun possession in local school zones.

What did the Supreme Court rule in 1974? ›

Nixon, 418 U.S. 683 (1974), was a landmark decision of the Supreme Court of the United States in which the Court unanimously ordered President Richard Nixon to deliver tape recordings and other subpoenaed materials related to the Watergate scandal to a federal district court.

Which U.S. Supreme Court case led to the development of a routine police procedure to ensure that suspects were informed of their rights? ›

After the Miranda decision, the nation's police departments were required to inform arrested persons or suspects of their rights under the ruling prior to custodial interrogation or their answers would not be admissible in court. Such information is called a Miranda warning.

What did the Supreme Court rule about the protection against unreasonable search? ›

The Supreme Court in Katz v. United States, 389 U.S. 347 (1967) held that “searches conducted outside the judicial process, without prior approval are prohibited under the Fourth Amendment, with a few detailed exceptions.”

What is Rule 11 of the U.S. Supreme Court? ›

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate ...

Does the U.S. Supreme Court have enforcement power? ›

The Supreme Court has no power to enforce its decisions. It cannot call out the troops or compel Congress or the president to obey. The Court relies on the executive and legislative branches to carry out its rulings. In some cases, the Supreme Court has been unable to enforce its rulings.

Which Supreme Court cases expanded the rights of the accused in American law? ›

In a 5-4 Supreme Court decision Miranda v. Arizona (1966) ruled that an arrested individual is entitled to rights against self-incrimination and to an attorney under the 5th and 6th Amendments of the United States Constitution. Miranda v.

What is the power of the United States Supreme Court to rule on the issue of whether an law is constitutional or not called? ›

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself.

In what case did the U.S. Supreme Court decide that confessions must be voluntarily given to be admissible in Court? ›

Miranda v. Arizona: Miranda was arrested at his home and taken in custody to a police station where he was identified by the complaining witness. He was then interrogated by two police officers for two hours, which resulted in a signed, written confession.

What is in the 4th Amendment? ›

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.


1. HLS Library Book Talk | Claire Finkelstein, "Sovereignty and the New Executive Authority"
(Harvard Law School)
2. The CIA and the Cult of Intelligence Audiobook (part 1 of 3)
(Our Channels Our Archives)
3. Emerging Case Law on Congressional Oversight
(Levin Center for Oversight and Democracy)
4. 2017 Gross Lecture: Ontario Chief Justice Strathy (LLB '74)
5. CIC Event : "Fine tuning Electoral Democracy" : 7th Nov 2017


Top Articles
Latest Posts
Article information

Author: Terence Hammes MD

Last Updated: 09/10/2023

Views: 5933

Rating: 4.9 / 5 (49 voted)

Reviews: 80% of readers found this page helpful

Author information

Name: Terence Hammes MD

Birthday: 1992-04-11

Address: Suite 408 9446 Mercy Mews, West Roxie, CT 04904

Phone: +50312511349175

Job: Product Consulting Liaison

Hobby: Jogging, Motor sports, Nordic skating, Jigsaw puzzles, Bird watching, Nordic skating, Sculpting

Introduction: My name is Terence Hammes MD, I am a inexpensive, energetic, jolly, faithful, cheerful, proud, rich person who loves writing and wants to share my knowledge and understanding with you.