The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct

And those paying attention haven’t missed it.

illustration of a man holding a whip
Time Life Pictures / Heritage Images / Getty / The Atlantic

For years, the Supreme Court has sent a clear message to lower courts: Police officers can’t be sued for violating someone’s constitutional rights unless the specific actions at issue have previously been held unconstitutional. Police, the Court has argued, need “breathing room to make reasonable but mistaken judgments about open legal questions.” The trouble is that no matter how egregious the conduct might seem, so long as a plaintiff cannot find a prior court decision declaring similar behavior unconstitutional, a court cannot hold officers accountable. But in the past few months, following a summer of protests against police violence, the Supreme Court seems to be quietly changing its message.

When the Supreme Court first created qualified immunity, in 1967, it was described as a protection for officers acting in good faith. Today, qualified-immunity doctrine has nothing to do with whether officers acted in good faith. Instead, the keystone is whether officers violated what the Court calls “clearly established law.” And, in recent years, the Court has insisted that the law is only “clearly established” if the Supreme Court, the court of appeals for that jurisdiction, or a consensus of federal courts around the country has previously held virtually identical conduct to be unconstitutional.

The Court has repeatedly chided lower courts for denying qualified-immunity motions, explaining in a 2017 opinion that it had “issued a number of opinions reversing federal courts in qualified immunity cases” in recent years, but that it was “again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality,’” and should instead “be ‘particularized’ to the facts of the case.”

Lower courts have gotten the message. Every year, they have issued a steady stream of opinions granting qualified immunity to law-enforcement officers who have engaged in egregious behavior. Qualified immunity has been granted to officers who sicced a police dog on a man who had surrendered and had his hands in the air, officers who shot a 10-year-old boy in the leg while trying to hit his unthreatening dog, and officers who stole $225,000 in cash and rare coins when executing a warrant. Courts dismissed civil suits against all of these officers—not because they hadn’t violated the Constitution, but because there wasn’t a prior case in which officers had violated the Constitution in the same way, leaving no “clearly established” precedent (by the Supreme Court’s definition) that the behavior was wrong.

Yet despite the strength of qualified immunity, its armor has begun to crack. Justice Sonia Sotomayor criticized qualified immunity in 2015 for “sanctioning a ‘shoot first, think later’ approach to policing.” In 2017, Justice Clarence Thomas suggested that his colleagues reconsider qualified-immunity doctrine because it has no legal basis. In lower courts, judges appointed by Republicans and Democrats have offered scathing critiques of the doctrine. Judge Don Willett, a Donald Trump appointee, wrote that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—so long as they were the first to behave badly.”

Legal scholars and advocacy groups have repeatedly petitioned the Supreme Court to abolish or reform qualified-immunity doctrine. In its 2019–20 term, the Supreme Court took months to decide whether to hear one or more of the many qualified-immunity cases pending before it—a hesitation some took as a sign that the Court might finally act.

Then COVID-19 hit. And then George Floyd was killed by Derek Chauvin. Protesters across the country carried hand-drawn signs calling for an end to qualified immunity. Bills to eliminate qualified immunity were introduced in the House and Senate. But congressional Republicans opposed these legislative efforts. Senator Tim Scott called qualified-immunity reform a “poison pill” that was “off the table.”

In June 2020, amid this fervor and speculation, the Supreme Court declined to hear all the pending qualified-immunity cases on its docket. Advocates viewed that step as an indication that the Court would take no action on qualified immunity, and turned their attention to Congress and the states.

But then, on November 2, 2020, the Supreme Court issued a short, unsigned opinion in a case called Taylor v. Riojas, brought by a prisoner who was kept in a pair of “shockingly unsanitary cells”—one of which was “covered, nearly floor to ceiling, in massive amounts of feces”—for six days. The Supreme Court reversed the lower court’s decision granting qualified immunity to the corrections officers because “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”

Only once before had the Supreme Court ruled that qualified immunity could be denied in the absence of a prior court opinion on point. In that 2002 case, Hope v. Pelzer, the Court ruled that officers did not need to consult a court decision to know that it was wrong to leave a prisoner shackled to a hitching post all day beneath the Alabama sun—such conduct was obviously unconstitutional. Since 2002, the Court had only paid lip service to the notion that qualified immunity can be defeated without a prior case on point.

The Court’s unsigned opinion in Taylor revived the notion in Hope that qualified immunity could be denied if a constitutional violation is obvious, even if the precise fact pattern is novel. But the opinion did not indicate what impact the Court imagined Taylor would have—whether it was an extraordinary decision responsive to extraordinary facts that would be quickly ignored by the Court (as Hope has been), or whether it reflected a shift in the Court’s thinking about qualified immunity.

Just last week, the Supreme Court offered a clue. The case before it was McCoy v. Alamu, in which a Texas prisoner, Prince McCoy, alleged that a corrections officer sprayed him in the face with mace “for no reason at all.” When the Fifth Circuit Court of Appeals granted the officer qualified immunity in February 2020, it relied heavily on Supreme Court precedent, writing that “the pages of the United States Reports teem with warnings about the difficulty of showing that the law was clearly established” for qualified-immunity purposes. But the Supreme Court reversed the circuit court, instructing it to reconsider its decision in light of Taylor.

The Supreme Court did not write an opinion in McCoy; it merely issued a four-line summary disposition vacating the lower court’s opinion and sending it back. But the Court’s reliance on Taylor in its order in McCoy suggests that the Court does not view Taylor as an aberration. Instead, the Court appears to be sending a message that lower courts can deny qualified immunity for clear misconduct, even without a case with identical facts.

This may be how the Supreme Court finally takes action on qualified immunity—not with a sweeping, landmark decision, but with a subtle message, heard by civil-rights lawyers and judges who are listening, that it is stepping back from its most robust depictions of qualified immunity’s power.

Perhaps the Court is choosing this quieter path strategically, out of concern that disrupting established precedent on qualified immunity could be used as justification to disrupt the law in other areas. After all, the Court’s decision in Taylor is not reversing anything—it is just reaffirming a legal proposition that had been in hibernation. Perhaps the justices have been unable to agree on whether qualified immunity should be abolished, or how significantly it should change. Or perhaps the justices did not want to fully enter the political fray.

Whatever the reason, the Court is indicating a change. And people are responding: In less than four months on the books, Taylor has been cited in at least 20 cases and more than 30 briefs. Now, with McCoy underscoring Taylor’s directional shift, more advocates will invoke Taylor when opposing qualified-immunity motions, and argue that qualified immunity’s protections should not turn on the presence or absence of prior court decisions in clear cases. Trial and appellate judges sympathetic to this view—who believe that the Supreme Court’s qualified-immunity decisions have gone too far—will now be able to cite both Hope and Taylor in support of qualified-immunity denials. Taylor can make a meaningful difference, even if it doesn’t make a big splash.