Supreme Court Passes On Chance To Modify The Qualified Immunity Doctrine

Civil Rights Policy Brief #177 | By: Rodney A. Maggay | October 24, 2021

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Policy Summary

In Rivas – Villegas v. Cortesluna, Officer Daniel Rivas – Villegas responded to the scene of a 911 call. Upon arriving at the home he found a mother and her two daughters barricaded in a room trying to hide from the mother’s boyfriend. Ramon Cortesluna, the mother’s boyfriend, was in possession of a chainsaw and was destroying items in the house. The officers perceived he was carrying a knife. The officers shot him with two non – lethal beanbag shots at which point Cortesluna began to cooperate. He lay on the floor and Officer Rivas – Villegas placed his knee on Cortesluna’s back and removed the knife from his pocket.

Afterwards, Cortesluna sued Officer Rivas – Villegas for excessive force. The case was tried and subsequently appealed to the Ninth Circuit Court of Appeals which ruled that Officer Rivas – Villegas was not entitled to qualified immunity in the case because the facts in the case were similar to the case LaLonde v. County of Riverside. The court indicated that this case showed there was “clearly established law” which meant that the Rivas – Villegas case had to follow the Lalonde case and deny immunity to Officer Rivas – Villegas. Cortesluna would then be permitted to sue the officer for his injuries. However, the Supreme Court overruled the Ninth Circuit’s decision and declared that Officer Rivas – Villegas was entitled to the qualified immunity defense.

In City of Tahlequah v. Bond, another officer also responded to a 911 call. When the officers arrived on the scene, they found the woman’s ex – husband drunk and refusing to leave the woman’s home. The officers approached the ex – husband who then grabbed a hammer and raised it in a manner that indicated he might throw the hammer at the officers. The officers then shot and killed him. The estate of the victim then sued the two officers for excessive force but the officers were found not liable because of the qualified immunity defense. The case was appealed to the Tenth Circuit Court of Appeals which reversed and found that the officers were not entitled to the defense. An appeal was then made to the United States Supreme Court which reversed the Court of Appeals and ruled that the officers were not liable because “the officers plainly did not violate any clearly established law.”

Policy Analysis

The qualified immunity doctrine is one of the most controversial legal doctrines today and has come under heightened scrutiny in the current environment focusing on police misconduct and calls for law enforcement reform.

The doctrine of qualified immunity offers a defense to law enforcement officers (and other state and local officials) for their official conduct so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Without this defense most officers would lose the civil suits brought against them. For a plaintiff to prevail they would have to show a “clearly established law” which would probably mean pointing to a factually similar case. However, because officers always invoke the defense when sued there is rarely a case to point to that has similar facts and which has held the officer liable. It is a Catch – 22 situation since courts are asking plaintiffs to show “clearly established law” when in reality there are no such cases since the legal defense prevents an officer from being held responsible.

There had been hope that either of these two cases would have resulted in a landmark case that could have overruled or modified the doctrine. Use of the doctrine had become so skewed and generated some head scratching results that Justices Clarence Thomas and Sonia Sotomayor – two justices on opposite ends of the political spectrum – both questioned the validity of the defense and called for a reexamination of the legal doctrine. Prior cases had seen officers invoke the legal defense and prevail even though the officers were engaged in some egregious conduct.

Policing for Profit

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Officers who stole evidence and as much as $225,000 in cash in a California case were held not liable to the plaintiff only because they invoked the qualified immunity defense. Officers in Idaho were also found not liable even though their excessive actions caused the complete destruction of plaintiff’s home, again only because they claimed the qualified immunity defense.

And officers who killed a person they mistook for a suspect escaped liability by again using the qualified immunity doctrine as their defense. The doctrine was not meant to provide an absolute immunity shield for police officers but that is what the doctrine has evolved into. The Supreme Court could have taken steps to rein in the most extreme applications of the doctrine or even eliminate it but sadly chose not to in the two cases this term. Other options to reform the doctrine have been presented, most notably from Senator Ed Markey (D-MA) and his bill “Ending Qualified Immunity Act” but nothing definite has been passed in Congress thus far. The two cases at the Supreme Court offered the best opportunity at the moment but the Court failed to take the issue up.

It remains to be seen if Congress or the Supreme Court will address the doctrine and make the necessary modifications so that citizens can hold police officers accountable for their conduct.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact

Engagement Resources​


Ending Qualified Immunity Act Bill – press release from Sen. Ed Markey’s office introducing bill.

CAC Color

Constitutional Accountability Center – opinion piece from center advocating for elimination of the qualified immunity doctrine.

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