Saturday, July 03, 2021

Coming Soon: Abolishing Qualified Immunity for Everyone But Killer Cops

As "qualified immunity" has become a more prominent target for criminal justice reformers, it has been noted by many that Justice Thomas has regularly been issuing calls for the Court to reconsider the doctrine (one which, as he notes, has little historical or textual basis to it). But yesterday, writing on the denial of certiorari in a case called Hoggard v. Rhodes, Justice Thomas gave further color to how his revisiting qualified immunity might look -- and it doesn't exactly bode well:

[T]he one-size-fits-all doctrine [of qualified immunity] is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions.... why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question.

In other words, Justice Thomas is suggesting a path where we keep something like qualified immunity for police officers using violent force, but abolish it for public university officials contending with the judiciary's rapidly evolving and often seemingly arbitrary campus free speech jurisprudence, because police officers have to make "split-second decisions" whereas campus deans have time to "calculate". If ever there was a way to get the new right-wing court onboard with getting rid of qualified immunity, holding out the possibility that one could open up politically targeted harassment suits of hoity-toity college administrators while preserving the authority of the police to maim with impunity is about as tantalizing as one could get.

On the point that police officers are differently situated because they have to make "split-second" choices, I'd note first that a separate distinguishing feature between the deans and police officers is that the alleged constitutional violations of deans typically don't involve killing anyone (and typically can be fully remedied by injunctive relief). I'd note second that judges sometimes have a propensity to describe any police misconduct as involving "split-second decisions" even in cases where they are absolutely making calculated choices under no especial pressure or time crunch.

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