Monday, September 16, 2019
Joanna Schwartz has this post at The Volokh Conspiracy. In part:
Justice Sotomayor, sometimes joined by Justice Ginsburg, has criticized the Court's qualified immunity decisions for undermining government accountability by "sanctioning a 'shoot first, think later' approach to policing." And in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for straying from its common law foundations and recommended to his colleagues that, "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence."
Although the Court has yet to accept Justice Thomas's invitation, it seems like only a matter of time until it does. Petitions for certiorari in qualified immunity cases are now regularly invoking Justice Thomas's language in Ziglar. The ACLU, the Cato Institute, and the Law Enforcement Action Partnership, among others, have submitted multiple amicus briefs to the Supreme Court, urging it to reconsider the defense. On October 1, the Supreme Court will consider a petition for certiorari in one of these cases—Baxter v. Bracey. Whether or not the Court grants cert. in Baxter, there is every reason to believe this coalition of critics will continue to bring their arguments to the Court.