The court rarely explains why it is not taking cases and it did not do so Monday, but Justice Clarence Thomas recorded his dissent in connection with the decision to pass up one case stemming from a 2014 incident involving a police dog’s bite of a homeless man, Alexander Baxter. Nashville police caught Baxter in the process of carrying out a burglary. He claimed had already surrendered when the dog attacked.
When Baxter sued, the 6th Circuit Court of Appeals tossed out his case. It held that while it was well established that a police dog couldn’t be unleashed on a suspect who was lying down, there was no case addressing someone sitting down with their hands up, as Baxter said he was doing.
“There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe,” Thomas wrote as he dissented from the court’s refusal to hear Baxter’s case.
Some liberals have also been sharply critical of the doctrine, including Justice Sonia Sotomayor, who skewered it in a 2015 opinion.
However, the court seems to have had trouble finding the appropriate vehicle to address the issue. At least three qualified immunity cases were also turned down by the justices last month. It takes four justices to grant review in a case.
The doctrine not only benefits police but other government employees, like hospital workers, firefighters and paramedics. It has no direct application to criminal prosecutions for police misconduct such as unjustified shootings, which tend to be even harder to win than civil suits.
The American Civil Liberties Union, which represented Baxter at the Supreme Court, expressed regret that the justices declined to take the case.
““The Supreme Court’s deeply disappointing decision today to punt on the critical issue of official immunity, in this time of national reckoning over police violence, places the ball squarely in Congress’s court,” ACLU legal director David Cole said in a statement.
“We have seen the deadly consequences play out on the streets, and Black Americans have largely paid the price. Recent events demonstrate the urgent need for Congress to stand up for the rule of law and abolish qualified immunity — for anyone acting under color of law — to close the loophole allowing government officials to escape accountability for violating constitutional rights,” he added.