Last week, in two unsigned opinions, the Supreme Court showed its disdain for police reform. The two cases, part of the court’s so-called shadow docket, were decided without public briefing or argument. Taken together, they create an almost insurmountable barrier to holding police officers responsible for violating people’s constitutional rights.
With this latest move, the Supreme Court has abdicated its responsibility to regulate police behavior. Now legislators must step up and do what the justices won’t.
The question in both cases was whether officers should get qualified immunity in cases in which they were said to have used excessive force. Qualified immunity protects officers from having to pay monetary damages when they violate people’s rights. Under the Supreme Court’s qualified immunity doctrine, it is not enough to show that an officer acted unlawfully to lose that protection. A court also must find that the right the officer violated was “clearly established” at the time. In both cases, the court ruled for the police officers.
Even before last week, “clearly established” was a high bar for victims to overcome because it required that there be a prior case, either from the Supreme Court or the appellate court in the same jurisdiction, involving an almost identical set of facts. Courts have routinely pointed to minor factual differences — for example, whether the victim was lying down or sitting upright — in holding that a prior case was too dissimilar to put the officers on notice that they were acting unconstitutionally.
But after last week’s rulings, without noted dissents, the bar to relief may be so high that virtually no one can clear it. The unsigned opinion in Rivas-Vellegas v. Cortesluna suggests that law enforcement officers will get a free ride until the Supreme Court itself weighs in to say which precise conduct is out of bounds.
Not once but twice the justices wrote that, “even assuming” that an appeals court case “can clearly establish law” for civil rights violations, the court failed to identify such a case. The clear implication is that an appellate court case on point may no longer suffice to hold officers responsible. To drive their position home, the justices concluded: “Neither Cortesluna nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.”
This is a sharp departure from the widely held assumption and practice that an analogous lower court case would be sufficient to alert officers that they were acting unlawfully.
It’s crazy enough to think that policing can be regulated by judicial decisions that, studies have shown, police officers rarely read or learn about anyway. But it’s crazier still to think the entire domain of unconstitutional policing can be defined by the tiny number of cases that the Supreme Court decides each year — especially if, as the court keeps insisting, victims must point to a nearly identical case before the police can be held to account. (At least before Monday, plaintiffs had dozens if not hundreds of lower court decisions on which to draw.) The obvious conclusion is that for the most part police conduct simply will go unregulated by the courts.
Lest it seem we are crying wolf, the justices themselves confirmed this view in the other qualified immunity decision it announced last week. “As we have explained,” they wrote, “qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Is that the standard you’d want governing any public employee, let alone those who carry badges and guns? Is the bar for sound policing truly set at those who are not “plainly incompetent” or who “knowingly violate the law”?
What the justices seem not to recognize is that policing is a multifaceted and complex endeavor that requires clear rules and close supervision to regulate — the kind of oversight that has been deterred by the sort of mess evident in last week’s decisions. For decades, both state laws and law enforcement policies on officer use of force simply reiterated the rule announced in 1989 in Graham v. Connor, in which a unanimous Supreme Court held that force need only be “objectively reasonable” in the eyes of an average police officer at the moment it’s used.
But decisions like Graham provide no guidance on a host of critical issues, including the steps that officers should take to try to de-escalate potentially violent encounters or the information that officers must include in use of force reports to make careful supervision and review easier.
For far too long, society has tried to regulate and fix policing by asking the courts to apply vague standards after the fact. We would never think to regulate nuclear energy or workplace safety simply by reviewing deadly accidents after they have occurred to determine whether companies acted “reasonably.” Instead, we have detailed laws that say precisely what can and cannot be done. State legislatures need to take the same approach with policing by setting clear rules in advance.
A small number of states, including Colorado and Washington, have adopted comprehensive reform measures, including stricter rules on when officers may use force, robust data collection and reporting requirements and stronger mechanisms to hold officers accountable for misconduct. Virginia took steps to curb the use of low-level traffic stops as an excuse to stop and search drivers in the hopes of finding guns or drugs.
Unfortunately, state laws on policing are still too few, too piecemeal and often come too late. After George Floyd was murdered, many states banned chokeholds. After Breonna Taylor was killed, some banned no-knock warrants. But we are not going to fix policing with an approach that does nothing but rule out the last horrifying thing that happened. What is needed are comprehensive statutes, like the ones we at the Policing Project at the New York University School of Law have drafted, which establish clear rules for what officers may and may not do and put in place mechanisms to ensure those rules are followed.
Last week’s cases slid by quietly. The facts were not egregious enough to muster marching protests, and because the court handled them on its shadow docket, there was little media attention.
But make no mistake. The justices thumbed their noses at the Black and brown communities who disproportionately pay the price for unconstitutional police misconduct, as well as the many voices across the ideological spectrum who finally understand that the question of policing requires thoughtful, careful attention. Lawmakers must now do the work the courts will not.
Barry Friedman is a professor at New York University School of Law, where he is a co-founder and faculty director of the Policing Project. Maria Ponomarenko is a professor at the University of Minnesota Law School and a co-founder and the counsel of N.Y.U.’s Policing Project.
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