Last week, the Supreme Court issued two terse unsigned opinions dealing with qualified immunity. In Rivas-Villegas v. Cortesluna and City of Tahlequa v. Bond, the Court reinstated district court grants of qualified immunity to officers accused of excessive force in violation of the Fourth Amendment. Despite the controversy surrounding the doctrine lately, neither decision featured a dissent. Straightforward as they may seem, these cases nevertheless highlight the need for federal reform that will help fill remaining gaps in the law—gaps that lead the public to overestimate qualified immunity’s importance.

Qualified immunity is a legal doctrine that shields government officials from civil liability when they violate a plaintiff’s constitutional or statutory rights. It does not apply, however, if those rights were “clearly established” at the time of the offense. In an excessive-force case, that test requires every reasonable officer have fair notice that the police conduct in question was unlawful, typically by looking to a precedent from the Supreme Court or the relevant circuit court with facts similar enough to place the constitutional question “beyond debate.”

In 2001, the Supreme Court’s decision in Saucier v. Katz told lower courts that they should tackle the question of whether qualified immunity applied only after considering whether the facts alleged constituted a violation of the rights being asserted. Only then could courts move on to “step two” of the analysis, which was to determine whether the parties asserting the qualified-immunity defense were on fair notice that their conduct was illegal. In 2009, however, the Supreme Court reversed itself in Pearson v. Callahan, holding that lower courts could exercise their own discretion when deciding which step to decide first. Many courts have since sought to dispose of cases by simply asking whether any prior precedents “clearly established” the right being asserted—that is, without ever getting to the question of whether the alleged conduct violated a constitutional or statutory right. Therein lies the problem.

Consider the two cases just decided. In Cortesluna, police in Union City, California, responded to a 911 call from a crying 12-year-old girl. She said that she, her 15-year-old sister, and her mother were holed up in a bathroom to protect themselves from Ramon Cortesluna, the mother’s boyfriend, who was allegedly attempting to cut down the bathroom door with a chainsaw. Five officers arrived and demanded that Cortesluna come to the front entry. He did, dropped a metal tool, and stood about 10 feet away from the officers, with a knife protruding from his front left pants pocket. Noticing the knife, police ordered him to keep his hands up. He instead lowered his head and hands, prompting one officer to shoot him twice with a beanbag shotgun and shout for him to get down. He complied, and Officer Rivas-Villegas placed a knee on the left side of Cortesluna’s back for eight seconds while raising his arms behind his back before standing up, allowing another officer to remove the knife.

In Bond, three police officers in Tahlequah, Oklahoma, responded to a woman’s call that her ex-husband, Dominic Rollice, a registered sex offender, was in her home and intoxicated. Officers arrived and told him they were trying to get him a ride elsewhere. He appeared fidgety, and upon refusing to be pat down, an officer stepped toward him. Rollice retreated to the back of the garage, where he grabbed a hammer and held it aloft. The officers drew their weapons and repeatedly ordered him to drop the hammer. He instead lifted the hammer behind his head, signaling a potential intent to throw it, which prompted officers to fire, killing him. (Robert VerBruggen wrote about the case before it was decided.)

Neither of these cases displays extraordinary facts. Officers across the country will likely encounter similar circumstances again. Both circuit courts reversed grants of qualified immunity, demonstrating that at least some judges believed there were sufficient facts to make out constitutional violation claims. But in Callahan, the Court sanctioned avoidance of the “step one” analysis and opted for uncertainty over clarity.

By failing to decide the merits of the excessive-force claims, the Court has again stunted the development of Fourth Amendment law. These decisions widen the door for critics of qualified immunity to speak as if the only thing that saved the defendants from “accountability” is the lack of a prior case with virtually identical facts. It may well be that neither of these cases involved an excessive-force violation, but the high court’s opinion in Bond states that the justices “need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment.” The justices left police departments without the guidance that a constitutional analysis would have provided.

This is why Congress should act. Last year’s federal proposals to eliminate qualified immunity have languished, and police unions have thwarted some state and local legislative efforts (though others have succeeded). But Congress should pursue a middle ground by re-imposing the order of operations set out in Saucier—requiring courts to assess the merits of the underlying constitutional claims in cases in which defendants are asserting qualified immunity. Congress has intervened in this way before: in 1993, lawmakers passed the Religious Freedom Restoration Act to reestablish a legal framework for free-exercise cases that the Court had controversially eliminated.

The benefits of this approach are twofold. First, it would more quickly elaborate the scope of “clearly established” rights. Second, it would give police and the public a clearer picture of when qualified immunity actually shields officers from civil liability for unlawful conduct. As the law develops, police can adapt training and practices to avoid similar violations in the future. If courts continue to decline to say what the Fourth Amendment means in qualified-immunity cases, Congress should intervene.

Photo by Robert Nickelsberg/Getty Images


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