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 Nathaniel Jordan
Supreme Court Continues to Uphold Qualified Immunity By Nathaniel Jordan
Pop-culture media didn’t use to talk about qualified immunity all that much. But that’s changed in the last couple years, with new scrutiny on law enforcement conduct, and with positions in the public eye staked out on both sides of whether qualified immunity should stay or go. How much does public opinion impact the world of civil rights legal practice? It’s hard to say, but new attention to qualified immunity has left practitioners wondering whether the courts would take a different approach to the doctrine. And, particularly, the Court that sets policy for all others.
The answer of late has been that the Supreme Court has continued to uphold the doctrine. Most notably in the last 18 months, the Court decided Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021), and City of Tahlequah, Okla. v. Bond, 142 S. Ct. 9 (2021), each a per curiam opinion in favor of qualified immunity that reversed the appellate opinion below.
• In Rivas-Villegas, the Court granted qualified immunity to an officer who briefly kneeled on the back of a knife-carrying man in response to a domestic violence incident involving a chainsaw. A prior appellate case denying qualified immunity to an officer who, responding to a noise complaint, dug his knee into the back of an unarmed man wasn’t enough to put the Rivas-Villegas officer on notice that kneeling in his situation violated a constitutional right.
• In City of Tahlequah, the Court granted qualified immunity to officers who shot a man who raised a hammer as if to attack after officers engaged in conversation with him and followed him into his garage. A prior appellate case involving officers responding to a “potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from his hands” did not clearly establish that the City of Tahlequah’s officers’ conduct was reckless or unlawful.
That is, in both Rivas-Villegas and City of Tahlequah, existing precedent did not clearly establish a constitutional violation under similar circumstances. Since then, these two cases have been collectively cited in over 400 other cases, broadcasting the continuing vitality of the qualified immunity defense.
Meanwhile, the Supreme Court has denied certiorari in other qualified immunity cases, leaving in place appellate court rulings that had upheld qualified immunity. See Tucker v. City of Shreveport, La., 142 S. Ct. 419 (2021); Ramirez v. Guadarrama, 142 S. Ct. 2571, 2572 (2022); Cope v. Cogdill, 142 S. Ct. 2573 (2022). And since Rivas-
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