Whose Precedents Count for Qualified Immunity?

Written by: Pearson Cunningham, Esq.

On October 18, 2021, the Supreme Court summarily reversed the Ninth Circuit’s denial of qualified immunity to a Union City, California police officer in Rivas-Villegas v. Cortesluna. Many commentators and critics of the qualified immunity defense were a bit surprised. Just last fall, the Court seemed to signal that its appetite for policing the lower courts over erroneous denials of qualified immunity might be waning.

Indeed, breaking from its past practice of summarily reversing lower courts for their denials of qualified immunity to police officers, the Court had most recently summarily reversed lower courts in two cases for their grants of qualified immunity. Some went so far as to predict that these cases were a bad omen for the continued viability of the qualified immunity defense. Alas, the Court decision in Rivas seems to suggest otherwise—at least for now. And while the defense remains, Rivas is worthy of comment for a subtle reminder the Supreme Court slipped into the decision

In reversing the denial of qualified immunity, the Court analyzed the Ninth Circuit’s reliance on a single circuit court precedent for clearly establishing the law. “Even assuming that controlling Circuit precedent clearly establishes law” for purposes of qualified immunity, the Supreme Court explained that the circuit-precedent relied upon by the Ninth Circuit could not have possibly given the officer “fair notice” because it was materially distinguishable. But what if had been a materially similar circuit precedent: would that have sufficed for purposes of clearly established law?

If you thought the answer to that question was already a foregone conclusion you’d be mistaken. Technically, the Supreme Court has “not yet decided what precedents—other than [its] own—qualify as controlling authority for purposes of qualified immunity.” D.C. v. Wesby, 138 S.Ct. 577, 591 n.8 (2018). In practice, though, it probably is a foregone conclusion in most respects—unless, of course, you preserve the issue in the lower courts and get the issue before the Supreme Court.

Most circuits already have binding precedent on what counts when materially similar caselaw is used for purposes of clearly-established law. For example, the rule in the Eleventh Circuit is that precedent from the Supreme Court, the Eleventh Circuit, or the highest court of the pertinent state where the conduct occurred suffices. See Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). Other circuits, however, are more lenient. See, e.g., Brown v. Battle Creek Police Dept., 844 F.3d 556, 567 (6th Cir. 206) (finding clearly established law, notwithstanding lack of Supreme Court and circuit precedent, based on a robust-consensus of out-of-circuit precedent and a district court decision within the circuit).

It does raise an interesting question though: could the Supreme Court actually hold that only its decisions suffice? It would certainly send shockwaves through the government liability community if the Court ultimately did conclude so, and the calls for legislative abrogation of the qualified immunity would certainly begin to cry louder. Keep a lookout for our upcoming post surveying what counts as “clearly established law” across the firm’s geographic footprint.