By Linh Nguyen
WASHINGTON D.C. – The U.S. Supreme Court decided Monday to not wade into the sticky subject of “qualified immunity,” the legal doctrine that immunizes law enforcement and public officials from lawsuits.
Recent police brutality protests and killing of people of color by police have brought that “qualified immunity” claim to the forefront of demands to change how police are treated.
The ambiguity of qualified immunity that allows peace officers to avoid being liable for damages when their actions or inactions harm or kill people muddies the case of Baxter v. Bracey and Harris, in which officers released a canine to apprehend the surrendered petitioner, claiming their qualified immunity protects them from prosecution.
The Supreme Court chose not to take a look at that case Monday.
Monday, when the Supreme Court decided to deny the ACLU’s petition, Justice Clarence Thomas dissented from the denial of the petition. In his opinion, he stated that he had previously expressed his doubts about qualified immunity jurisprudence.
Thomas referred to the good faith clause and the difficulty and subjectiveness of establishing good faith in determining qualified immunity.
“Although I express no definitive view on this question, the defense for good-faith official conduct appears to have been limited to authorize actions within the officer’s jurisdiction,” he wrote. “An officer who acts unconstitutionally might therefore fall within the exception to a common-law good-faith defense.”
The facts of the case are clear.
On January 8, 2014, Nashville Police Department Officers Brad Bracey and Spencer Harris responded to a call reporting Alexander Baxter, a homeless man, burgling a house. When Baxter realized the police 
were pursuing him, he fled into the basement of one house.
Officers shouted warnings at him to surrender or else they would release the police canine. Baxter did not initially surrender and Harris released his dog. When they confronted Baxter in the basement, Baxter surrendered, sitting with his hands up in the air. Five to 10 seconds elapsed, providing the officers further confirmation that Baxter surrendered.
However, instead of arresting Baxter, Harris suddenly released the dog again to attack him without warning. The dog bit his armpit, which was exposed because his arms were raised in surrender. Baxter was taken to a hospital for emergency medical treatment.
Baxter filed a complaint asserting that Harris’ second release of the dog and Bracey’s failure to intervene violated the Fourth Amendment, which prohibits unreasonable search or arrest.
Bracey moved to dismiss, arguing that his failure to intervene did not violate Baxter’s clearly established rights, giving him qualified immunity.
The district court denied this motion. Bracey then appealed and the court of appeals affirmed because, under circuit law, a failure-to-intervene claim requires a showing of excessive force and that the non-intervening officer knew or should have known about it and had both the opportunity and the means to prevent the excessive force.
The court held that because Baxter surrendered when he sat on the ground with his arms in the air with the officers positioned on either side of him, the officers were in no danger and Baxter was not actively resisting nor attempting to flee.
In the 2012 case Campbell v. City of Springboro, the Sixth Circuit Court of Appeals (the same court where Bracey took his matter), held that an officer clearly violated the Fourth Amendment when he used a police dog without warning against an unarmed residential burglary suspect.
Bracey appealed the district court’s decision to the Sixth Circuit Court of Appeals, which affirmed the denial of qualified immunity to Bracey.
However, a second panel heard Bracey’s appeal and reversed the district court’s decision, holding that the officers’ actions did not violate clearly established law. They referred to the 1988 case of Robinette v. Barnes, which held that an officer did not use excessive force when he used a dog to apprehend a suspect who had not surrendered and evaded arrest, justifying the officers viewing the suspect as a potential threat.
The second appellate panel reasoned that “like the suspect in Robinette, Baxter fled the police after committing a serious crime and hid in an unfamiliar location. He also ignored multiple warnings that a canine would be released, choosing to remain silent as he hid.”
They did not disagree with the fact that the second time Harris released the canine occurred “suddenly, without warning” and after Baxter was sitting on the ground with his hands raised in surrender. They reasoned that qualified immunity was warranted because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”
In their appeal to the Supreme Court, the ACLU argues that the decision the Sixth Circuit Court of Appeals wrote was wrong and demonstrates that qualified immunity has generated confusion and requires reconsideration.
They also argued that qualified immunity decisions are filled with inconsistencies among the courts of appeals. Conflict over the meaning of “clearly established” is already established in among the circuit courts of appeals.
Lastly, the ACLU argued that this case provides an ideal opportunity to reconsider qualified immunity for many reasons. The first reason is that no procedural obstacles would obstruct the Court’s direct consideration of the questions presented.
The second reason is that the facts are simple and occur in a clean timeline where the officers pursued a suspect; he initially ran but surrendered by sitting down with his hands up; one of the officers released a police canine on him causing bodily injuries that required emergency hospital treatment.
Therefore, the ACLU argued, Baxter’s situation lacks the complexity of cases with intricate background facts that inform officers’ judgment about how or whether to seize a suspect, according to the petitioner.
The last, and “most important” reason is that this case “exemplifies the many problems with the qualified immunity doctrine in practice, including the difficulty of consistent application, the difficulty of identifying the appropriate level of generality at which to define the right at issue, the absence of clear guidance for future conduct, and absurd results.” This would enable the Court to evaluate the operation of qualified immunity and its flaws.
