The Supreme Court moved on Monday to strengthen the doctrine of qualified immunity, which protects police officers accused of excessive force from lawsuits. The court released two unsigned decisions, without dissents, backing police officers who in one case shot a suspect with bean bags and then put a knee on his back and in the other case shot and killed a suspect who brandished a hammer at them.

These actions were protected, the court said, because there must be precedent that a specific form of brutality is extreme enough to wipe away qualified immunity—and that precedent must come from the Supreme Court. It’s not enough that a lower court has told officers it is unacceptable to put a knee on someone’s back with enough force to injure them. The Supreme Court must have signed on to that very specific opinion. It’s almost like if an officer can figure out what the court hasn’t ruled out in the way of harming suspects—which is a lot—he has a free pass to do that.

In the case of Ramon Cortesluna, who was shot with bean bags (reasonably, according to the 9th Circuit) when police responded to a 911 call saying his girlfriend and her two children were locked in a bathroom in fear of him and that he was armed, and then had a knee put on his back while he was lying prone (which the 9th Circuit said the officer should have known was not acceptable), the Supreme Court’s anonymously authored decision had this to say:

“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6) (internal quotation marks omitted). A right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per curiam) (internal quotation marks omitted). Although “this Court’s case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” White, 580 U. S., at ___ (slip op., at 6) (alterations and internal quotation mark somitted). This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U. S. 194, 198 (2004) (per curiam) (internal quotation marks omitted).

And, later, “Neither Cortesluna nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.” 

But there always has to be a first, right? Earlier in the year, the court did find two cases vicious and disgusting enough to rule that the officers involved did not get qualified immunity. Notably, both those cases involved correctional officers, not police officers. In one, a Texas prisoner was held for six days in “shockingly unsanitary cells,” one covered in feces and one where the floor “was wet with urine and had a backed-up drain into which he was told to urinate, leaving him to sleep, naked, on the urine-soaked floor,” a judge on the 5th Circuit Court of Appeals wrote. In the other, another Texas prisoner was sprayed in the face with chemicals “for no reason at all.” In both cases, the 5th Circuit sided with the correctional officers. In the second case, for instance, a judge wrote that, sure, the abuse had violated a constitutional right, “But it was not beyond debate that it did,” he continued, “so the law wasn’t clearly established.”

In those cases, the Supreme Court disagreed, sending them back to the appeals court for reconsideration as ineligible for qualified immunity. It’s not clear what distinguished those cases from the current ones—the specific nature of the abuses involved, the detailed circumstances under which those abuses took place, or the fact that the officers in the new cases were police rather than correctional officers. But the court took it a step beyond simply saying “this was not bad enough” to saying that only cases where the facts line up with facts in previous Supreme Court cases are relevant.

Qualified immunity allows law enforcement to essentially torture at will, knowing that the courts will protect them in all but the most gratuitous, egregious, and outright disgusting cases—and even sometimes then. The Supreme Court earlier this year showed some willingness to say that there are limits to that. On Monday it qualified that with a “but not too often, not too many, not too strict.”

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This is a Creative Commons article. The original version of this article appeared here.

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