Supreme Court just doubled down on flawed qualified immunity rule. Why that matters.

With two unsigned opinions, the Supreme Court on Monday seemed to double down on a nonsensical and impractical approach to qualified immunity.

The court sided with police officers who had been sued for civil rights violations, ruling that the officers involved are entitled to qualified immunity because there was no other case with similar enough facts to put each officer “on notice that his specific conduct was unlawful.”

In effect, the two decisions announced Monday mean plaintiffs need a prior case with nearly identical facts in order to overcome qualified immunity and hold public officials accountable.  

Qualified immunity:Supreme Court sides with police, overturns denial of immunity in two cases

Qualified immunity protects police officers and other government officials from being sued for money damages – even if they have violated the Constitution – if they have not violated “clearly established” law. The Supreme Court has made clear that, in most cases, the law is not clearly established unless a court previously held nearly identical facts to be unconstitutional.

Some, including myself, had thought the Supreme Court was stepping away from its impossibly restrictive standard when it ruled last November, in Taylor v. Riojas, that no prior court decision was necessary for "obvious" constitutional violations. But the decisions released Monday suggest otherwise.

Why has the Supreme Court adopted such a difficult standard? Because, according to the court, only a prior case with nearly identical facts will put an officer on notice that he has violated the Constitution.

But police officers aren’t actually educated about the facts and holdings of cases that “clearly establish” the law, so it makes no sense that victims of police misconduct are denied relief unless and until they can find them.  

Standards for police use of force

Graham v. Connor, decided by the Supreme Court in 1989, sets the standard for police uses of force. Graham says officers violate the Fourth Amendment only when they use force that was objectively unreasonable under the totality of the circumstances they faced. 

But the Supreme Court has made clear that Graham does not “clearly establish” the law. Instead, to defeat a qualified immunity motion, a person must find a case where similar force was used under similar circumstances. In Brosseau v. Haugen, for example, the Supreme Court decided the plaintiff had to find a case with facts that clearly established the officer’s conduct was unconstitutional under the particular circumstances he faced: “whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” 

The Supreme Court has explained that factually similar cases are necessary to put an officer on notice that what he did was wrong. In the court’s own words, factually similar cases are necessary to “clearly establish” the law because "it is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts."

But are officers actually educated about the facts and holdings of these cases? The answer is an unequivocal no.  

Series on qualified immunity:Faces, victims, issues and debates surrounding qualified immunity: A USA TODAY Opinion series

Officers don't know 'clearly established' law

I examined hundreds of use-of-force policies, trainings and other educational materials received by California law enforcement officers. I found officers are educated about watershed decisions like Graham but are not regularly or reliably educated about court decisions interpreting those watershed decisions – the very types of decisions that are necessary to clearly establish the law for qualified immunity purposes. 

California police department policy manuals reference or incorporate the constitutional standards from Graham, but they rarely reference any cases in which Graham was applied. California police officer trainings focus primarily on the broad principles articulated in Graham. 

Even if law enforcement were to rely more heavily on court decisions to educate their officers about the constitutional limits of force, there could never be enough time to train officers about the thousands of court cases that could clearly establish the law for qualified immunity purposes. And even if an officer did somehow come to learn about the facts and holdings of these decisions, there is no reason to believe they would remember those details or think about them during the types of high-speed, high-stress interactions that often lead to uses of force. The expectations of notice and reliance baked into the qualified immunity doctrine would still be unrealistic. 

Qualified immunity: Keep or end? 

If we end qualified immunity, officers will still not violate the Constitution if they act reasonably because courts will continue to assess whether an officer's decision to use force was reasonable under the framework supplied by Graham – which requires that courts consider the totality of the circumstances not “with the 20/20 vision of hindsight” but with the recognition that “police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” 

But if we keep qualified immunity, the definition of “clearly established law” should be changed to reflect how officers are actually educated about the scope of their authority.

If the goal of qualified immunity is to give officers fair notice, and they are on notice of watershed decisions like Graham – but not educated about the facts and holdings of court decisions applying Graham – then "clearly established law" should be defined much more generally.  

Joanna Schwartz is a professor at the UCLA School of Law.

This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.