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Qualified immunity is a rule that when a person sues officials for violating the constitution, the official gets off the hook if the law was not 鈥渃learly established.鈥� Under this doctrine it is entirely possible鈥攁nd quite common鈥攆or courts to hold that government agents did violate someone鈥檚 rights, but that the illegality of their conduct wasn鈥檛 well-established enough for them to be held liable. In practice, 鈥渃learly established law鈥� is a very hard standard to meet. It generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with very similar facts. The practical effect is that public officials鈥攅specially members of law enforcement鈥攔outinely get away with unconstitutional misconduct, simply because no one else has committed that precise kind of misconduct before.

In April 2019, working together with the ACLU of DC and the ACLU of Tennessee (the state where the dog-attack occurred), we filed a petition with the U.S. Supreme Court asking it both to reverse the grant of immunity to the officers responsible for the dog attack on Baxter and also to reconsider the doctrine of qualified immunity itself. The Court created the doctrine in 1967 based on what it understood to be a historical tradition of immunity. But recent study has demonstrated that this understanding was mistaken. In fact, the consistent historical practice was to hold officers liable for their constitutional violations, without immunity. The Court has justified qualified immunity based on the need to shield individual officers from personal liability because they might be reluctant to do their jobs well if they thought they could be required to compensate victims of their misconduct. But recent studies show that officers almost never pay judgments themselves 鈥� the governments that employ the officers pay instead. And qualified immunity imposes huge costs on the legal system: Federal courts are in disagreement about how to apply it. It teaches officers that they won鈥檛 face consequences for violating people鈥檚 rights. And by letting constitutional wrongs pass without a remedy, it weakens the rule of law itself.

The decision below wrongly immunized officers for attacking a defenseless man who has clearly indicated his surrender and posed no threat. We are asking the Court to correct this injustice and fix the flawed doctrine that led to it.

The Supreme Court considered the petition several times throughout its 2019-20 term, ultimately waiting to rule until it had several pending petitions calling for qualified immunity reform. Then in the wake of the killing of George Floyd in Minneapolis in May 2020 and the nationwide protests that followed, a bill to curtail qualified immunity was introduced in Congress in June 2020.

On June 15, 2020, the Court denied our petition on behalf of Mr. Baxter, along with the other fully briefed petitions calling on the Court to revisit qualified immunity. Justice Thomas dissented from the denial of review in Mr. Baxter鈥檚 case.

The ACLU will continue to fight for reform in Congress and the courts.