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October 18, 2021

Federal double jeopardy cert grant and two summary reversals awarding police qualified immunity on new SCOTUS order list

After two weeks hearing oral argument (including a short holiday week), the Supreme Court has the next two weeks "off" before its November sitting.  But a final bit of SCOTUS action today comes in the form of this order list with two cert grants, a lot of cert denials, and two summary reversals.  The cert grants are in one civil and one criminal "Indian" case, and the question presented in Denezpi v. US, 20-7622, from this cert petition is:

Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?

The two SCOTUS per curiam summary reversals both involve short unanimous decisions overturning rulings by the Ninth and Tenth Circuits that denied qualified immunity to police officers. The Ninth Circuit case, Rivas-Villegas v. Cortesluna, No. 20-1539 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving "Rivas-Villegas plac[ing] his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving."  The Tenth Circuit case, City Tahlequah v. Bond, No. 20-16689 (S. Ct. Oct. 18, 2021) (available here), is described by the Justices as involving two officers shooting to death a suspect who "raised the hammer [which he grabbed during a tense encounter] higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers."

Though I do not follow discussions and debates over policing doctrines closely, I know that there has been considerable interest in encouraging the Supreme Court to cut back (or even eliminate) the judge-created doctrine of qualified immunity.  These two new decisions would seem to suggest that this current Court seems just fine with applying qualified immunity and that any significant changes to the doctrine for the police will need to come from other branches.

October 18, 2021 at 10:01 AM | Permalink


I'm depressed by the two per curiams including the lack of written dissents (Sotomayor can do only so much, I guess).

They are fact specific cases that SCOTUS seems usually to reach out in its "error correction docket" mostly to overrule pro-defendant cases that probably are open to some dispute.

If they want to clarify the rules, take a case for full argument.

Yes, it looks like federal legislation will be necessary, even if from time to time, they will find some lower court opinion they think is so wrong that QI should not have been applied.

The basic concept is overused -- if there is grounds to show that police should be given the benefit of the doubt, it could be found at a trial of some sort. Qualified immunity assume categorically, upheld by the Supreme Court in selective cases via unsigned per curiams, is not a good way to run a railroad.

Posted by: Joe | Oct 18, 2021 10:21:33 AM

Also, as is repeatedly the case, the per curiam tosses in language that seem substantive and can affect application of the law in the future. As Prof. Joe Dunman noted on Twitter citing one case:

"They’re pretending to be generous here but the “even” suggests that Circuit precedent can’t clearly establish rights, which means only SCOTUS precedent can, which makes beating QI effectively impossible in nearly every case because there are so few SCOTUS cases."

Posted by: Joe | Oct 18, 2021 10:24:13 AM

Over the past year or so, we have seen several qualified immunity cases with summary opinions that go both ways. As best as I can read the opinions, the Supreme Court is putting forth a Goldilocks standard. They don't want the lower courts to be too general (i.e. applying a broad legal standard as establishing clear rules for police conduct) but they also don't want the lower courts to be too specific (require a prior case that has the same exact facts). As best as I can tell, they want the prior case to be close enough that it is clear that the conduct in this case is also a constitutional violation.

I am a little surprised that the dicta suggesting that circuit precedent might not be enough to defeat qualified immunity did not get some concurrence pushing back on that suggestion. On the other hand, the language seems to be merely issue raising to invite a case that specifically involves that issue.

But it seems that other than tinkering at the margins of what is sufficiently clear precedent, it seems that the majority is not interested in taking a qualified immunity case. The majority is willing to call the circuits divisible by 3 or ending in 5 on their unwillingness to follow Supreme Court precedent on qualified immunity.

Posted by: tmm | Oct 19, 2021 10:22:08 AM

On the native case, I would restate the question as are the semi-sovereign tribes more like the states (separate sovereigns for the purposes of the double jeopardy clause) or are they more like municipalities/territories (treated as part of a sovereign). Given that both cases -- the civil and the criminal -- concern the relationship between the tribes, the federal government, and the states -- these two cases could be crucial indicators of the respect that the law is willing to give to tribes as independent governments. They also might hint at what will happen when the Supreme Court takes up the Indian Child Welfare Act case.

Posted by: tmm | Oct 19, 2021 10:25:31 AM

From coverage I have seen, the "both ways" that challenges QI basically cover a few egregious prison cases.

But, if there is a breakdown somewhere, I'd like to see it. It doesn't seem "no leaning / about the same both ways." But, again, as usual, I would find a clear breakdown helpful to clarify things the regularly are covered somewhat vaguely.

Posted by: Joe | Oct 19, 2021 7:10:47 PM

It's not an even breakdown at the Supreme Court because it looks like five circuits are the big offenders and the current law makes qualified immunity the norm rather than the exception. Third, Sixth, Ninth, and Tenth have tended to deny qualified immunity based on broad statements in earlier cases. Fifth Circuit has tended to find qualified immunity in every case based on the lack of a precedent with the exact same facts. When you add in the size of the Ninth, that leads to a very lopsided reversal rate.

I live in a very conservative circuit (Eighth Circuit) and I regularly see 1983 cases in which the circuit finds no qualified immunity -- not the majority of cases but one or two per month. I would need to look closer at the data to verify my hunch, but my hunch is that the QI summary opinion breakdown is similar to the habeas summary opinion break down with the summary opinions being the outliers revealing which circuits aren't following past precedent.

Posted by: tmm | Oct 20, 2021 10:29:44 AM

Oh. That's why.

It's not that we have a conservative court.

It's just coincidence that the problems in most -- I specifically made clear it is a trend, not an all/nothing thing -- go in one way.

My "hunch" is otherwise. You have various types of circuits and some lean in one direction, some another. A liberal leaning court could have found more cases they deem extreme (cases that one or more time, the other side of the Court will be much less convinced of, though they won't dissent on the record necessarily, which in the shadow/error correction docket is done selectively) the other way.

As usual, it is harder to show which is why I would want to see people who made a full breakdown. But, multiple commentators see a leaning. I'm sure as usual you will find others who don't though in both cases they won't actually have a full breakdown.

Posted by: Joe | Oct 20, 2021 10:56:45 AM

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