U.S. Supreme Court Declines to Hear Qualified Immunity Cases
On June 15, the U.S. Supreme Court declined to hear eight cases concerning qualified immunity, a doctrine that gives police officers and other officials broad immunity against liability for civil rights violations in federal lawsuits. Justice Clarence Thomas dissented from the Court’s decision, writing he has “strong doubts" about the doctrine.
Qualified immunity has received renewed attention in recent weeks after the police killing of George Floyd. The doctrine, created by the Court decades ago in Harlow v. Fitzgerald, shields public officials who deprive people of their legal rights from civil liability so long as those rights were not “clearly established” at the time they were violated. In practice, the Court has acknowledged that it “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Despite the Court’s decision to sidestep qualified immunity this term, Congress has the authority to eliminate the doctrine through legislative action, and several proposals have been introduced. States can address the issue as well. On Juneteenth, Colorado passed the Enhance Law Enforcement Integrity Bill, which bars qualified immunity as a defense to liability for state constitutional claims.
Federal Judge Bans ICE Courthouse Arrests in New York State
On June 10, U.S. District Court Judge Jed Rakoff of the Southern District of New York ruled that U.S. Immigration and Customs Enforcement (ICE) must stop arresting immigrants in and around New York state courthouses.
Judge Rakoff’s decision was issued in State of New York et al. v. ICE, a case in which the plaintiffs alleged that ICE courthouse arrests “make certain parties and witnesses fear coming to court, but the temporary chaos they create disrupts court proceedings and makes it impossible for judges to do their jobs effectively.” A 2019 report from the Immigration Defense Project found that in 2018, ICE made 178 courthouse arrests in New York, compared to 11 arrests made in 2016.
Advocates and lawyers in other states have likewise pushed back against ICE courthouse arrests. At the end of May, the Brennan Center filed an amicus brief on behalf of 19 former Massachusetts judges, arguing that ICE courthouse arrests undermine equal access to the courts. Other states, including Oregon, New Jersey, and California, have also taken action to prevent such arrests from taking place.
State Supreme Courts Issue Statements Addressing Systemic Racism in the Courts
As the country continues to reckon with racial injustice and police brutality after the murders of George Floyd, Breonna Taylor, Layleen Polanco, and many others by the police and carceral state, several state supreme courts and individual chief judges have issued public statements acknowledging the ways in which courts have enabled racial inequities in the criminal justice system.
Some courts have also explicitly acknowledged past decisions that have perpetuated structural racism. “As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving [B]lack parents the right to bury their infant,” wrote the Washington State Supreme Court in a unanimous letter to the state’s legal community.
Others have committed to taking concrete steps to address racial bias in their courts. Chief Judge Janet DiFiore of New York, for example, has enlisted a former Obama administration official to conduct an independent investigation of institutional racism within the state’s court system.
In-Person Jury Trials Resume in Some Jurisdictions with Social Distancing
After initially closing their doors to the public and suspending in-person proceedings due to the Covid-19, some courts have begun holding in-person jury trials with social distancing.
Oregon was one of the first states to resume in-person jury trials. For this first trial, the Multnomah County judge asked jurors to maintain distance throughout the process and provided masks but wearing them was optional. “There’s an inherent conflict between the rights of someone on trial and our social distancing policies,” said Dylan Potter, the defense attorney in the case. His client was found guilty.
California and Ohio have begun to hold in-person socially distanced jury trials as well. But other state courts have taken a different approach. Notably, Texas has experimented with remote jury trials. Last month, a judge in Collin County held a day-long civil trial over Zoom in which the verdict was nonbinding.
Both defenders and prosecutors have raised concerns with the use of virtual jury trials, citing evidentiary concerns, technology glitches, lack of privacy, among other drawbacks.