The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct

For years, the Supreme Court has sent a clear message to lower courts: Police officers can’t be sued for violating someone’s constitutional rights unless the specific actions at issue have previously been held unconstitutional. Police, the Court has argued, need “breathing room to make reasonable but mistaken judgments about open legal questions.” The trouble is that no matter how egregious the conduct might seem, so long as a plaintiff cannot find a prior court decision declaring similar behavior unconstitutional, a court cannot hold officers accountable. But in the past few months, following a summer of protests against police violence, the Supreme Court seems to be quietly changing its message.

When the Supreme Court first created qualified immunity, in , it was described as a protection for officers acting in good faith. Today, qualified-immunity doctrine has nothing to.” And, in recent years, the Court has insisted that the law is only “clearly established” if the Supreme Court, the court of appeals for that jurisdiction, or a of federal courts around the country has previously held virtually identical conduct to be unconstitutional.