If you’ve tuned in to any local or national news this week, you know that police reform remains a hot topic. We remain committed to updating you on the latest case reports, court updates, and recent legislation. Check back soon, because this story keeps evolving!

We reported a few weeks ago that the U.S. Supreme Court was considering a number of cases for certiorari review involving qualified immunity. Despite recent tumult across the nation over police use of force policies, SCOTUS declined on Monday to reexamine the legal doctrine — at least for now. In an unsigned order, the Justices declined to hear any of nine petitions.

Four justices must vote to grant certiorari review. But only Justice Clarence Thomas dissented from denial of cert in these cases, writing the “qualified immunity doctrine appears to stray from the statutory text.” Thomas argued the judiciary’s present application of the qualified immunity doctrine “is no longer grounded in the common-law backdrop against which Congress enacted” the Civil Rights Act of 1871 Act, 42 U.S.C. § 1983, and that there is likely no basis for the objective inquiry into the existence of clearly established law forbidding the challenged conduct that our modern cases prescribe when qualified immunity is asserted as a defense to liability claims against public officers.

Despite SCOTUS’s silence, three lower federal courts revived police-excessive-force suits in the past few weeks. On June 9, the U.S. Court of Appeals for the Fourth Circuit decided Estate of Wayne A. Jones v. City of Martinsburg, et al., Case No. 18-2142, denying qualified immunity to West Virginia police officers involved in a 2013 shooting of a homeless black man walking in the street, instead of on a sidewalk as required by law. Five officers shot Jones 22 times after a confrontation in which he refused to drop a knife. The Court held the district court erred in granting the officers summary judgment on qualified immunity because “[i]n 2013, it was clearly established that law enforcement may not constitutionally use force against a secured, incapacitated person —let alone use deadly force against that person.” Jones had been “tased four times, hit in the brachial plexus (a nerve center in the neck), kicked, and placed in a choke hold.”

On June 10, the Ninth Circuit decided Jessie Lee Stoddard-Nunez v. City of Hayward, et al., Case No. 18-16403, holding a jury must decide whether a California police officer used excessive force in 2013 when he shot nine times at a passing vehicle, the driver of which he suspected of driving under the influence, killing a passenger. There too, the Court reversed summary judgment for the officer on qualified immunity, finding factual issues justifying trial abounded as to whether the vehicle swerved toward the officer or was driving away. The Court concluded: “Officers are not entitled to qualified immunity for shooting at an individual in a fleeing vehicle that does not pose a danger to them or to the public.”

And on June 8, the Fifth Circuit issued an opinion reviving a suit accusing two Rio Grande City, Texas police officers of excessive force when they tased a teen girl.

With SCOTUS deferring the issue at least for next term — and lower courts reaching conflicting rulings on the doctrine — it’s up to Congress to take on qualified immunity for alleged police misconduct. House Democrats introduced the Justice in Policing Act 2020 last week, while Senate Republicans led by South Carolina’s Tim Scott introduced the JUSTICE Act this week. While there are many differences between the bills, qualified immunity may well be the biggest sticking point. The Democratic bill would eliminate it; Republicans have said any proposed change to qualified immunity is a non-starter. The President’s Executive Order on police reform this week doesn’t even mention qualified immunity. If Congress does not address qualified immunity, we can expect this issue back on SCOTUS’s docket next year.

We will continue to keep you updated on developments in this area. Stay tuned!