Qualified immunity for LEOs is under assault: Will the doctrine survive the attack?
If H.R. 1280 becomes law, the defense of qualified immunity for law enforcement officers will be abolished
The doctrine of qualified immunity was established by the United States Supreme Court more than 50 years ago in Pierson v. Ray.  In 1982, the Court in Harlow v. Fitzgerald,  explained that there is a need for a qualified immunity defense for public officials, including law enforcement officers, to protect them from the often-frivolous lawsuits resulting from their necessary official actions. The Court observed that the goal of the defense is to allow for the “dismissal of insubstantial lawsuits without trial.” 
Fast forward to 2001 when the Court decided Saucier v. Katz.  Here the Court established a rigid two-pronged analysis that lower court trial judges were mandated to follow regarding qualified immunity. First, the lower courts were required to determine whether the plaintiff’s alleged facts amounted to a violation of the constitution. If so, the lower courts were directed to determine whether the alleged constitutional violation was clearly established. The second prong required proof that the defendant officer knew or should have known his alleged misconduct violated the constitution.
In Pearson v. Callahan in 2009,  the Court decided that its two-pronged formula in Saucier was too inflexible and placed unnecessary constraints upon lower court judges. The Court loosened the application of its two-pronged test to permit the lower courts to review the second prong first by determining whether the law on the particular constitutional issue was clearly established. If not, the case would be dismissed without trial.
After Pearson, lower federal courts began to dispose of civil rights cases by refusing to rule on whether officer conduct violated the constitution and instead dismissed them because there was no prior case law sufficiently close or directly on point condemning the conduct at issue.  The ability of lower federal courts to dismiss cases of alleged police constitutional misconduct because officers did not violate clearly established law has created a virtual firestorm of criticism of the qualified immunity defense. 
Contemporary Supreme Court actions on “Qualified Immunity”
On June 15, 2020, the Supreme Court refused to hear eight cases pertaining to the qualified immunity defense.  Seven of those cases involved “police accused of excessive force or other misconduct.”  One of these cases, Baxter v. Bracey,  involved allegations against two police officers in which Baxter, the subject of a burglary arrest, claimed that the officers unleashed a K9 dog upon him after he had raised his hands in surrender. The dog bit Baxter who filed a 42 U.S.C.§ 1983 (federal civil rights statute) lawsuit against the officers. The Sixth Circuit Court of Appeals ruled in favor of the officers and dismissed the suit on qualified immunity grounds because Baxter was unable to establish that the officers violated a clearly established constitutional right.
A petition for review was initiated by Baxter to the Supreme Court. The Court denied the petition along with several others involving qualified immunity. Justice Clarence Thomas filed a dissent to the dismissal of the petition.  In his dissent, Justice Thomas stated, “I have previously expressed my doubts about our qualified immunity jurisprudence.” Justice Thomas observed that although qualified immunity is applied routinely by courts in § 1983 litigation, “The text of § 1983 makes no mention of defenses or immunities.”  He further opined, “There is likely no basis for the objective inquiry into clearly established law that our modern cases prescribe.”  With this language and more, Justice Thomas expressed his doubt about the continued efficacy of the qualified immunity defense. Notwithstanding Justice Thomas’s point of view, the Supreme Court once again on March 8, 2021, refused to review Howse v. Hodous,  another case involving a grant of qualified immunity to law enforcement officers. 
Howse alleged that officers confronted him as he was entering his home and asked him if he lived there. He responded in the affirmative. Howse was asked if he was sure he lived there and he responded with something like, “Yes, what the f….” An officer commented that Howse had a smart mouth and a bad attitude. Howse claimed an officer told him to put his hands behind his back and that he was going to jail. Howse refused and an officer allegedly grabbed him, threw him on the ground and tried to handcuff him.  Howse resisted by stiffening his body and his mother came out and said she saw an officer hit her son, causing him to hit his head on the porch of the house.
Howse was arrested but the charges were dismissed. Howse sued the officers pursuant to § 1983, alleging a violation of the Fourth Amendment. The federal district court judge dismissed the suit and Howse appealed. The Sixth Circuit ruled in favor of the officers on qualified immunity grounds because Howse could produce no prior case that would place the defendants on notice that they were violating clearly established law.
Will the qualified immunity doctrine survive in its current form?
Predicting the future with any degree of certainty is of course an impossible task. Nonetheless, there are certain signs that can be considered in trying to ascertain the direction that the Supreme Court may follow.
First, with respect to the qualified immunity doctrine as applied to law enforcement officers, we have seen in the past nine months two dramatic refusals by the Court to examine the application of the qualified immunity defense by lower federal courts in cases that some would argue clearly merited review.
During this same time period, there have been numerous instances of serious and sometimes violent citizen protests alleging police brutality emanating from the death of George Floyd. These protests have resulted in demands for police reform of law enforcement conduct that allegedly resulted in the abuse of minority groups by police nationwide.
On March 3, 2021, the United States House of Representatives voted 220 to 212 to pass H. R. 1280, the “George Floyd Justice in Policing Act of 2021.”  Section 102 of this proposed law deals with “Qualified Immunity Reform.” My reading of this section indicates that instead of using the word “Reform,” the authors of the Bill should have titled Section 102 as follows: “Qualified Immunity Abolished.” The language of the Bill, if passed, clearly signals the death knell of qualified immunity.  The Bill will now go to the Senate for consideration and review.
It appears that in denying review of many recent police-related qualified immunity cases as described above, the Supreme Court is waiting to see what happens with qualified immunity in the U.S. Congress before agreeing to review and possibly modify or change its current qualified immunity doctrine. If Congress abolishes qualified immunity, the judicially created qualified immunity doctrine will cease to exist. If Congress fails to act, the Court is likely to step in and reconsider its current parameters of the doctrine.
What will happen to qualified immunity if congress fails to act on H.R. 1280?
The Supreme Court has signaled its possible willingness to modify the qualified immunity doctrine by recently granting limited review of two cases in which Texas correctional officers were held not liable by the Fifth Circuit for unconstitutional conduct because they did not violate clearly established law. The High Court ordered an immediate remand of both cases for the Fifth Circuit to reconsider its grant of qualified immunity to the defendant correctional personnel.
The first case is Taylor v. Riojas  in which the Fifth Circuit dismissed a lawsuit against Texas correctional officers for allegedly subjecting inmate Taylor to shockingly unsanitary conditions in his cell. The Fifth Circuit ruled that the conduct of the officers violated the Eighth Amendment but determined that the law on point was not clearly established, thus relieving them of liability. The second case is McCoy v. Alamu, another Eighth Amendment case, that was filed by an inmate against a Texas correctional officer.  In this case, a correctional officer allegedly used pepper spray upon the plaintiff for no reason. The Fifth Circuit ruled in favor of the correctional officer on qualified immunity grounds because the plaintiff could produce no prior case which would place the officer on notice that he was violating clearly established law.
In remanding the Taylor case, the Court issued a short “Per Curiam” Opinion  in which it observed that the Fifth Circuit was mistaken in granting qualified immunity to the defendant correctional officers. The Court explained that qualified immunity shields an officer who “reasonably misapprehends the law.” However, the Court stated, in this situation, “no reasonable correctional officer could have concluded that … it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions.” With these words, the Court is signaling its willingness to modify the qualified immunity doctrine to eliminate the need for victims to produce actual case law directly on point or sufficiently close in order to establish a violation of clearly established law. In other words, some misconduct is so egregious and so obviously wrong that it violates clearly established law even in the absence of the existence of prior case law directly on point or close to the instant issue.
The “Qualified Immunity Reform” portion of U.S. House of Representatives Bill, H. R. 1280, Section 102, covers state and local law enforcement officers who are involved in “the prevention, detection, or investigation of any violation of criminal law.”  The proposed law does not appear to cover state correctional officers who guard prisoners convicted under state law. This may account for the Supreme court’s willingness to consider modifying qualified immunity in the state correctional realm while holding back on state and local law enforcement officers until Congress votes on H.R. 1280.
After the death of George Floyd, the judicially created “qualified immunity” doctrine has been under assault and fierce criticism from many different directions, including media and various citizen groups. The pressure to change or abolish the doctrine has resulted in the passage of H.R. 1280 by the U.S. House of Representatives. If H.R. 1280 becomes law, the defense of qualified immunity for law enforcement officers will be abolished. If the bill fails to pass, the Supreme Court, which has recently declined to review numerous law enforcement-related qualified immunity cases, is likely to accept a law enforcement qualified immunity case for review.
Such a review will likely focus on the fairness of judicial dismissals of alleged police misconduct cases because plaintiffs were unable to overcome the clearly established law requirement of the qualified immunity doctrine. The Supreme Court has very recently signaled its sensitivity to lower court dismissals of troublesome correctional officer misconduct cases because the plaintiffs could not locate a specific case that clearly established wrongdoing by correctional officials. The Court has indicated in a Per Curiam Opinion its willingness to consider modifying the qualified immunity doctrine by abandoning the strict requirement that a plaintiff produces a specific prior case that declared the conduct of the current defendant clearly unconstitutional. Instead, in the absence of such a case, the Court may declare that some police misconduct is so obviously wrong that finding a particular prior case close to or directly on point is unnecessary.
1. 386 U.S. 547 (1967).
2. 457 U.S. 800 (1982).
3. Id. at 814.
4. 533 U.S. 194.
5. 555 U.S. 223.
6. See, Janita Kan, “Supreme Court Declines to Hear Another Case Challenging Qualified Immunity for Police,” The Epoch Times, 3/8/21.
7. See, for example, Andrew Chung, “U.S. Supreme Court rejects case over ‘qualified immunity’ for police,” Rueters 3/8/ 21 ; Jay Schweikert, “The Supreme Court Won’t Save Us from Qualified Immunity,” Cato Institute Blog, 3/3/21; Janita Kan, “Supreme Court Declines to Hear Another Case Challenging Qualified Immunity for police,” The Epoch Times, 3/8/21; Billy Binion, “Cops Who Assaulted and Arrested a Man for Standing Outside His Own House Got Qualified Immunity. Scotus Won’t hear the Case,” Reason. Com, 3/8/2021; “U.S. Supreme Court Declines to Review Qualified Immunity Cases,” Crabb, Brown, and James iip, 7/2/2020.; Lawrence Hurley and Andrew Chung, “Supreme Court rejects cases over qualified immunity for police,” Reuters, 6/15/20.
8. Binion B. The Cops Who Sicced a Dog on a Surrendered Suspect Got Qualified Immunity. Scotus Won’t Hear the Case. Reason.com, 6/15/20.
9. Hurley L, Chung A. Supreme Court rejects cases over qualified immunity for police. Reuters, 6/15/20.
10. No. 18-5102 (6th Cir. 2018).
11. No. 18-1287 (6/15/20).
14. 953 F.3d 402 (6th Cir. 2020).
15. Kan J. Supreme Court Declines to Hear Another Case Challenging Qualified Immunity for Police. The Epoch Times, March 8, 2021.
16. Howse’s set of facts were disputed by the officers but the Sixth Circuit, following federal procedural rules for summary judgment decisions, was required to accept Howse’s version of material facts for its ruling.
17. MCCaskill ND. House passes police reform bill.” Politico, 3/3/2021.
18. Section 2 in pertinent part reads, “It shall not be a defense or immunity in any action brought under [§ 1983] against a local law enforcement officer … that – (1) the defendant was acting in good faith, or … believed reasonably or otherwise that his conduct was lawful … or (2) the rights, privileges, or immunities secured by the constitution and laws were not clearly established … .”
19. (No. 19-1261) (11/2/2020). See also, Fifth Circuit opinion, Taylor v. Stevens, 946 F.3d 211 (2019).
20. Supreme Court Docket No. 20-31 (2/22/2021). See also, Anya Bidwell and Patrick Jaicomo, Lower Courts take notice: The Supreme Court is rethinking qualified immunity, USA Today, 3/2/2021.
21. An opinion issued in the name of the Court as opposed to an individual judge or group of named judges.
22. See, H. R. 1280, Section 102 (Qualified Immunity Reform) and Section 2 (6). (Definitions)(Local Law Enforcement Officer).