Did the Supreme Court Actually Clarify Qualified Immunity in City of Tahlequah v. Bond?

Before turning to today’s blog entry, I want to wish everyone a Merry Christmas, a happy holiday season, and a happy new year. Also, be safe.

 

Today’s blog entry is really short. Recently, I came across a legal blog entry suggesting that the Supreme Court had clarified the doctrine of qualified immunity in a per curiam decision, City of Tahlequah, Oklahoma v. Bond decided on October 18, 2021, here. Qualified immunity does come up from time to time in our blog, such as here, and I thought I would give the case a read. When I read the case, I don’t think the Supreme Court clarified much of anything at all when it comes to qualified immunity. I have divided the blog entry into the categories of what the Supreme Court said and thoughts takeaways. However, the blog entry is so short that you are going to want to read the whole thing. In fact, the blog entry probably will not make any sense if you don’t read the whole thing.

 

I

What the Supreme Court Said:

“The doctrine of qualified immunity shields officers from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U. S. 223, 231 (2009). As we have explained, qualified immunity protects “`all but the plainly incompetent or those who knowingly violate the law.'” District of Columbia v. Wesby, 583 U. S. ___, ___-___ (2018) (slip op., at 13-14) (quoting Malley v. Briggs, 475 U. S. 335, 341 (1986)).

We have repeatedly told courts not to define clearly established law at too high a level of generality. See, e.g., Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011). It is not enough that a rule be suggested by then-existing precedent; the “rule’s contours must be so well defined that it is `clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'” Wesby, 583 U. S., at ___ (slip op., at 14) (quoting Saucier v. Katz, 533 U. S. 194, 202 (2001)). Such specificity is “especially important in the Fourth Amendment context,” where it is “sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per curiam) (internal quotation marks omitted).”

On the one hand, the Supreme Court says that officers are protected from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Notice the phrase, “reasonable person.” However, the Supreme Court then goes on to say that you still get the benefit of qualified immunity so long as you are not, “plainly incompetent.” In the next paragraph, the court says that the question is whether the contours were so well defined that it was clear to a reasonable officer that his or her conduct was unlawful in the situation he or she confronted.

II

Thoughts/Takeaways

1. Qualified immunity is a judicial doctrine. I know lots of people have been working on the issue, including members of the Federal Bar Association, among others.
2. Qualified immunity does not come up a lot with respect to the ADA because the general rule is that there is no individual liability when it comes to ADA violations for title I, title II, or title III. There is one exception in the 11^th Circuit for employees of public entities who retaliate against another individual. See Shotz v. City of Plantation, Florida. That particular case turns on the use of the word person in 42 U.S.C. §12203(a). Interestingly enough, that term does not appear in 42 U.S.C. §12203(b), the interference section. So, it is entirely possible that in the 11^th Circuit individual liability for retaliation is in play but is not in play for interference claims. That distinction matters because it is not unusual at all to see police officers interfere with the rights of people with disabilities, such as, by way of example, in the case of the police getting the law wrong when it comes to a person with a service animal wanting to access a place of public accommodation.
3. Reasonable officer, reasonable person, and plainly incompetent are to my mind different standards. For example, in a prior blog entry, here, we talked about how a case that has been used to train police officers for excessive force is a fact pattern that probably violates the ADA. Even so, officers continue to get trained using that case. A reader of my blog or a police force trained by me would know that Graham v. Connor is not the one you should be looking at if you want to comply with the ADA. On the other hand, would an officer be plainly incompetent to rely on the case that has been used for years for training with respect to excessive force cases? I am not sure they would be.
4. The opinion also suggests that how close the match needs to be between a pre-existing case and the conduct at issue may vary depending upon context. For example, there may have to be a very close match with respect to the fourth amendment but perhaps less so with respect to other causes of action.
5. In short, I don’t see how this case clarifies qualified immunity much at all. Things continue to be very muddled even after this decision.

Happy holidays and happy new year!!!!!!

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