Some justices, lower court judges and scholars on both the left and right have questioned the legal doctrine for creating a nearly impossible standard for victims to meet and a nearly blanket immunity for those accused of misconduct.
The Supreme Court has in recent decades set a high bar for pursuing lawsuits over official misconduct. Officers' behavior must violate"clearly established" laws or constitutional rights, and courts have found it seldom does, because almost every specific allegation is different.
Associate Justice Clarence Thomas dissented from the decision not to hear a new case on qualified immunity, one involving a burglar who surrendered and then was bitten by a police dog. By refusing to hear a case, the court is not necessarily signaling that it will never abolish qualified immunity or significantly scale it back. Chief Justice John Roberts, in particular, prefers baby steps to big changes in court precedent.
David Cole, national legal director at the American Civil Liberties Union highlighted the implications of the court’s decision on police accountability and Congress’ responsibility to abolish the doctrine:
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