Thomas and Alito Take a Regrettable Position in a Qualified Immunity Case

Qualified immunity is a judge-made doctrine that routinely shields bad cops from facing civil lawsuits over their abusive and unconstitutional behavior. All too often, a federal judge will hear a case in which a clear constitutional violation occurred, only to then shield the offending officer anyway from facing civil liability over the blatant misconduct. It’s a legal doctrine that deserves to be abolished.

Occasionally, however, the officer will lose one of these cases, and qualified immunity will be denied. That’s what happened last year in Hart v. Grand Rapids, in which the U.S. Court of Appeals for the 6th Circuit actually let a federal civil rights lawsuit proceed against a Michigan police officer whose use of deadly force against a protester was officially reprimanded by his own superiors because of how the officer’s actions violated the department’s training and procedures.

That officer subsequently appealed his loss to the U.S. Supreme Court, which finally turned him down earlier this week, thereby leaving the 6th Circuit’s denial of qualified immunity undisturbed. The civil rights suit against the officer will now move forward in federal court, a welcome result. To be clear, the officer may still prevail in the end, but at least his alleged victim will now get the chance to seek redress for a credible constitutional rights violation.

What makes this case especially notable, in addition to the all-too-rare denial of qualified immunity, is the fact that two members of the Supreme Court went out of their way to let us know just how eager they were to rule in the offending officer’s favor.

In the view of Justices Clarence Thomas and Samuel Alito, the officer in this case was fully entitled to receive qualified immunity and to be shielded from facing civil suit. If it were up to Thomas and Alito, the 6th Circuit’s judgment against the officer would have been summarily reversed.

I am sometimes asked which members of the Supreme Court are the most reliably libertarian on various legal matters, such as criminal justice. After clarifying that nobody on the current Supreme Court is a truly consistent legal libertarian on anything, I typically say something to the effect that Justices Sonia Sotomayor and Neil Gorsuch usually tend to give libertarians the most reasons to cheer on matters of criminal justice.

This case presents us with the flip side of that coin. When viewed from a libertarian legal perspective, Thomas and Alito tend to stand out as the worst on criminal justice issues. In far too many cases, Thomas and Alito have exhibited a kind of overriding deference to law enforcement that undermines the Bill of Rights and thwarts government accountability. Their actions this week continue that unfortunate trend.