Hoggard v. Rhodes

Hoggard v. Rhodes

Opinion

 [*2421]   [**996]  Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit denied. Statement of Justice Thomas respecting denial of certiorari.

Concur by: THOMAS

Concur

Statement of Justice Thomas respecting the denial of certiorari.

 [**997]  As I have noted before, our qualified immunity jurisprudence stands on shaky ground. Ziglar v. Abbasi, 582 U. S. ___, ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017) (opinion concurring in part and concurring in judgment); Baxter v. Bracey, 590 U. S. ___, 140 S. Ct. 1862, 207 L. Ed. 2d 1069 (2020) (opinion dissenting from denial of certiorari). Under this Court’s precedent, executive officers who violate federal law are immune from money damages suits brought under Rev. Stat. §1979, 42 U. S. C. §1983, unless their conduct violates a “clearly established statutory or constitutional righ[t] of which a reasonable person would have known.” Mullenix v. Luna, 577 U. S. 7, 11, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015) (per curiam) (internal quotation marks omitted). But this test cannot be located in §1983’s text and may have little basis in history. Baxter, 590 U. S., at ___, ___, 140 S. Ct. 1862, 207 L. Ed. 2d 1069, at 1070, 1071 (opinion of Thomas, J.).

Aside from these problems, the one-size-fits-all doctrine is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions. Ziglar, 582 U. S., at ___-___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (opinion of Thomas, J.) (slip op., at 4-5). ¹ This petition illustrates that oddity: Petitioner alleges that [***2]  university officials violated her First Amendment rights by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, petitioner could engage with students only in a designated “Free Expression Area”—the use of which required prior permission from the school. The Eighth  [*2422]  Circuit concluded that this policy of restricting speech around the student union was unconstitutional as applied to petitioner. Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d 868, 879 (2020). Yet it granted immunity to the officials after determining that their actions, though unlawful, had not transgressed “‘clearly established’” precedent. Id., at 881.

But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question. See Ziglar, 582 U. S., at ___-___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (opinion of Thomas, J.) (slip op., at 4-5).

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