The Supreme Court on Monday squandered a chance to clean up a mess it helped make. In addition to refusing to work on gun cases needing their attention, justices declined to do anything about the contentious qualified immunity situation. The principle of qualified immunity was put in place to protect individual police officers from the cost of lawsuits brought against them by members of the public who feel their rights have been violated. Current qualified immunity law allows such suits to proceed only if there is an established law in clear violation by the officer. This controversial doctrine has been increasingly challenged amid recent protests, and some hoped that SCOTUS would take on the issue. Our highest Court voted not to hear any cases on this topic though, with the exception of Justice Clarence Thomas, who continues to encourage his colleagues to help clean up their mess.

“I continue to have strong doubts about our §1983 qualified immunity doctrine.” – Justice Clarence Thomas

But how does it impact real people in the real world?

Rin Tin Tin

Alexander Baxter burgled a house in 2104, when a neighbor called the cops. He then had the misfortune of encountering Nashville’s finest. The two canine police officers sicced their partner on Mr. Baxter, and Fido took a bite out of his arm. Mr. Baxter sued the police, saying he had already surrendered prior to the officers releasing the dog and so the attack amounted to excessive force. He never got the chance to prove his case in court, however, because it was dismissed due to the qualified immunity doctrine. That’s what the 6^th Circuit Court of Appeals ruled in 2018, and the Supreme Court has now let that ruling stand.

The 6^th Circuit said it was not clearly established that releasing a dog to apprehend someone with the specific facts of this case was excessive force. How could that be? Well, Mr. Baxter had fled the residence he was burgling and entered the basement of another house. That’s where police found him. Baxter never verbally indicated his surrender, but claims that his holding his empty hands up to face the officers was a clear enough sign. It wasn’t clear enough for the appellate court, which ruled that Mr. Baxter’s case could proceed only if “every reasonable official would understand that what he is doing is unlawful” in that situation, and that the standard wasn’t met in this case.

#SorryNotSorry

Keep in mind the appeal at the 6^th Circuit and the Supreme Court wasn’t about whether the police actually did violate Mr. Baxter’s rights – but about whether Mr. Baxter could move ahead with a lawsuit to prove that they did. No court has ruled that what the police did to him was acceptable – only that the right to be free from such behavior wasn’t clearly established at the time when officers released the dog. Here is the appeals court’s explanation minus legal citations:

The “clearly established” prong sets up an exacting standard in which the plaintiff must show that “every reasonable official would understand that what he is doing is unlawful.” “It is not enough that the rule is suggested by then-existing precedent”—it must be “beyond debate” and “settled law.” The effect is that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

Those quotes are from court cases cited, which all stem from the Supreme Court’s decisions establishing and broadening qualified immunity. Congress did not introduce laws instituting qualified immunity for law enforcement – the Supreme Court created the principle in a 1967 ruling supposed to give well-meaning officials the benefit of the doubt. That ruling required officials to act in “good faith” to receive the immunity grant, a requirement the Court changed in 1982, in Harlow v. Fitzgerald. In the Harlow case, they said even officials who violate people’s rights maliciously would be immune unless the victim can show that his or her right was “clearly established” by law.

Monday’s decision to continue such a broad grant of immunity means that change is not going to come from the Court any time soon. Congress and the president have the power to modify the immunity grant at any time by passing legislation clarifying what actions, if any, should be covered under qualified immunity. While it would be nice to see the Supreme Court clean up its own mess, Congress should have addressed the issue head-on a long time ago. Perhaps now it will.

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Read more from Scott D. Cosenza.