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May 14, 2020

Supreme Court to Revisit a Broken Doctrine

The defense of qualified immunity is absurd. It means bad actors avoid culpability, and victims lose the ability to hold them accountable.

As of today, the U.S. Supreme Court is slated to consider at least eleven challenges to the qualified immunity doctrine. Last June, in an Explainer for The Appeal, Amir and I laid out what qualified immunity is and how it is one of the chief ways in which law enforcement avoids accountability for misconduct.



In one of the cases before the Court, officers executing a search warrant seized over $275,000 in currency and rare coins, yet only logged $50,000 into police evidence. When asked by the owners where the remaining money and coins were, the officers involved merely “shrugged.” In another, officers chased a suspect into a backyard where a group of children were playing, ordered everyone to the ground, and then arbitrarily shot twice at the family’s dog, missing the dog, but shooting one of the children in the knee.


And in yet another case of egregious misconduct, police responded to a call where a man was having a mental health episode and acting strangely; they tased him nine times, including while he was lying handcuffed face down on the floor, and knelt on his back while he struggled for air and died. They did not, even then, offer him aid or attempt to resuscitate him.



Tamika Palmer, left, embraced her daughter Juniyah Palmer during a vigil for her other daughter, Breonna Taylor
Photo: Courier Jornal

In each of these cases, the victims (or the victims’ family) sued police for their blatant theft or use of deadly force. And in each of these cases, courts granted immunity to the officers and dismissed the lawsuits. In each case, courts determined that at the time these officers acted so egregiously, there was no prior caselaw that let officers know they couldn’t act the way they did, and so they face zero accountability for their behavior.



That just shows how absurd the defense of qualified immunity has become. It should be obvious that officers cannot blatantly steal your property. It should be obvious that officers cannot wildly shoot in the direction of innocent children. It should be obvious that officers cannot use deadly force on a handcuffed and subdued individual. Yet, “I didn’t know I couldn’t do that” has been a successful defense for police and government officials sued for similar conduct for the last 50-odd years.



Breonna Taylor
Photo: NBC News

Our country has seen police shooting after police shooting where officers are rarely, if ever, held accountable by the criminal legal system: because prosecutors decline to charge, because grand juries decline to indict, or because juries decline to convict. It is unconscionable that courts take away the remaining avenue for victims and their families to seek justice.

Just this week, officers forced their way into a house in the middle of the night and, without announcing themselves as police, burst into a bedroom where Breonna Taylor and her boyfriend, Kenneth Walker, were sleeping. Believing they were victims of a break-in, Walker fired in self-defense. Officers returned fire, hitting Taylor eight times, killing her where she lay in bed. Family have filed a lawsuit—but qualified immunity could doom their chance to hold those officers answerable.


This current application of the qualified immunity doctrine means bad actors avoid culpability, and victims lose the ability to hold them accountable.

The cases in front of the Supreme Court asking the Justices to revisit the doctrine are piling up and there’s at least some speculation that the Court is paying attention. Let’s hope the Supreme Court is gearing up to listen.



  • Blatantly steal

  • Wildly shoot

  • Use deadly force

  • Yet, “I didn’t know I couldn’t do that”

  • The qualified immunity cases in front of the Supreme Court are piling up