U.S. Supreme Court Won’t Take Up Qualified Immunity Review, But Congress May


This week, the U.S. Supreme Court denied a number of petitions relating to qualified immunity protections for law enforcement actions. This means the Court will not hear and decide on these cases. The Court also recently denied several similar petitions for review this term.

Over the last few years, qualified immunity has been criticized by a number of organizations and legal scholars. In recent weeks, it has faced even more intense scrutiny (e.g., in this Washington Post commentary by Joanna C. Schwartz), and some in Congress have now drafted legislation to end or alter the doctrine.

Two bills that would eliminate qualified immunity defenses available to public entity officials are the Justice in Policing Act and the Ending Qualified Immunity Act.

The Justice in Policing Act would remove qualified immunity under 42 U.S.C. § 1983 for law enforcement officers acting in good faith with reasonable belief of lawfulness. It would further eliminate defenses and immunities for laws that were “not clearly established” at the time of the action. The proposal also includes many other provisions related to policing practices (as does the newly introduced Justice Act in the Senate and a White House executive order on safe policing). The Ending Qualified Immunity Act would similarly eliminate qualified immunity defenses and immunities.

Qualified immunity is a key element in cases involving local public entity employees, so developments will be closely monitored by pools and related public entity associations. If you have questions or further information to share on this topic, contact Executive Director Ann Gergen.