02 Supreme Court building 2019
Washington CNN  — 

The Supreme Court declined on Monday to take a closer look at a legal doctrine it created nearly 40 years ago that critics say is shielding law enforcement and government officials from accountability.

The decision comes as protesters across the country have been reacting to the death of a black man, George Floyd, at the hands of a white police officer in Minneapolis. The death has sparked nationwide protests pushing for more police accountability and reform.

In recent years, legal scholars, judges and justices on all sides of the ideological spectrum have criticized the legal doctrine known as “qualified immunity,” arguing that it is not grounded in the proper legal authorities and it too often shields officials from accountability.

Under the doctrine, an officer will not be liable even if he violated the Constitution unless it was “clearly established” by prior cases that his conduct was unconstitutional.

That requires a high bar and makes it difficult to win unless the situation is similar to a prior case with nearly identical facts. In some cases with unique fact patterns, of which there are many, officers have been granted immunity even if they have been found to have acted in violation of the Constitution.

Across the ideological spectrum, critics say that the courts that have developed the doctrine over the years have gone astray.

One of the cases denied by the court involved Alex Baxter, a homeless man who was being pursued by Nashville police on a cold winter night about five years ago on suspicion that he had been breaking into homes. Officers chased him into a basement of a home and released a dog to look for him. The dog found him, the police were present and officers were on either side of Baxter. The officer corralled the dog, and Baxter put his hands up.

According to court papers, police officer Spencer Harris released the police dog to attack Baxter, who sustained an injury that brought him to the hospital. Brad Bracey, the other officer on the scene, failed to intervene in the attack.

When the lower courts handed down their opinion on Baxter, they granted qualified immunity to the police officer because given the unique fact pattern of the case, they were unable to determine that the law did not violate “clearly established law.”

“Even if Baxter raised his hands, the other circumstances … weigh against a finding that ‘every reasonable official would understand that what [Harris did] is unlawful.’ For that reason, Harris is entitled to qualified immunity,” the appeals court opinion reads.

The Supreme Court will not review that appeals court opinion.

Justice Clarence Thomas dissented from the unsigned order, signaling his willingness to take up a qualified immunity case and expressing his “strong doubts” on the doctrine.

Thomas harkened back to the congressional response to the reign of terror by the Klu Klux Klan, which produced the Civil Rights Act of 1871. According to the dissent, the law gave individuals a right to sue state officers for damages to remedy violations of their constitutional rights.

Thomas argues that the court’s application of the qualified immunity doctrine is “no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act.”

David Cole, national legal director at the American Civil Liberties Union, called the decision by the court deeply disappointing.

“The Supreme Court’s deeply disappointing decision today to punt on the critical issue of official immunity, in this time of national reckoning over police violence, places the ball squarely in Congress’s court,” Cole said. “We have seen the deadly consequences play out on the streets, and Black Americans have largely paid the price.”

This story has been updated with additional details from the court’s actions.