Fox 2
An Escherian Stairwell
The Supreme Court has designed a rule: cases against police go nowhere.
The petition for a writ of certiorari is denied.
JUSTICE
JACKSON would grant the petition for a writ of certiorari.
JUSTICE SOTOMAYOR, dissenting from the denial of certiorari.
“It hurts. Stop.” These were the words of Nicholas Gilbert just before he died at the hands of St. Louis police officers. Lombardo v. St. Louis, 594 U. S. ___, ___ (2021)
(per curiam) The police arrested Gilbert for
trespassing and for failing to show up in court for a traffic
ticket. They took him into custody. Six hours later, Gilbert
was dead.
The facts, taken in the light required at this
stage of litigation, show that six officers in a small holding
cell held Gilbert face down on the ground in handcuffs and
leg irons while at least one officer pressed down on his back
for 15 minutes—that is, until Gilbert stopped breathing.
Gilbert’s parents sued. They argued that the police used
excessive force against their son, in violation of the United
States Constitution. The parents demanded a jury trial.
The courts below, however, decided that a trial was unnecessary because qualified immunity shielded the officers. A
Federal District Court concluded that the officers did not
violate a constitutional right that was clearly established at
the time of Gilbert’s death. Lombardo v. Saint Louis City,
361 F. Supp. 3d 882, 895 (ED Mo. 2019). The Court of Appeals for the Eighth Circuit went a step further, deciding
that the officers did not violate any constitutional right at
all. 956 F. 3d 1009, 1014 (2020).
***
The “clearly established” prong of the qualified immunity
analysis can pose a very high bar for plaintiffs seeking to
vindicate their rights. Even when government officials violate the law, qualified immunity shields them from damages liability unless the “the violative nature of [the] particular conduct is clearly established.” Mullenix v. Luna,
577 U. S. 7, 12 (2015) (per curiam) (internal quotation
marks omitted). When taken too far, as here, this requirement allows lower courts to split hairs in distinguishing
facts or otherwise defining clearly established law at a low
level of generality, which impairs the ability of constitutional torts to deter and remedy official misconduct. See,
e.g., J. Jeffries, The Liability Rule for Constitutional Torts,
99 Va. L. Rev. 207, 256 (2013) (“It is as if the one-bite rule
for bad dogs started over with every change in weather conditions”).
Making matters worse, a court may grant qualified immunity based on the clearly established prong without ever
resolving the merits of plaintiffs’ claims. This inhibits the
development of the law. “Important constitutional questions go unanswered precisely because those questions are
yet unanswered. Courts then rely on that judicial silence
to conclude there’s no equivalent case on the books.” Zadeh
v. Robinson, 902 F. 3d 483, 499 (CA5 2018) (Willett, J., concurring dubitante). If this Court is going to endorse this
“Escherian Stairwell,” ibid., then it should instead reexamine the doctrine of qualified immunity and the assumptions underlying it. The doctrine is a creation of our own
design.
The Constitution’s command is clear: Police officers may
not use deadly force unless they reasonably believe that a
suspect poses a significant threat of death or serious injury
to the officers or others. Tennessee v. Garner, 471 U. S. 1, 3
(1985). We must give officers leeway to use judgment in
close situations, but not so much leeway that we nullify the
Constitution’s protections or permit officers to escape scrutiny by juries.
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