Will Baude

Just on the basis of what you've shown us so far, we can tell this is wrong.

We'll just write the opinion now, skip any need for briefing and further argument, and just, you know, cut to the chase.

Yeah.

So, I mean, lower courts get things wrong all the time.

And the question is, how does the court decide what mistakes it most cares about?

And to first approximation, the answer is if a lower court grants habeas corpus to a prisoner in state court or allows somebody to sue a police officer, then the little red light in the Supreme Court goes off that warns the court that somewhere somebody might get a constitutional remedy and all the justices scramble to go make sure that that doesn't happen.

Not so fast.

Yeah.

Right.

So the court says, in general, you can only be held liable, a police officer can only be held liable for violating your constitutional rights, not just if they acted unconstitutionally, but they acted outrageously, unreasonably in a way that everybody should have known was clearly illegal.

And, yeah, the Second Circuit had some previous cases where police officers were held to have used too much force.

But, you know, in that case, the guy got his head slammed into the floor.

So I think Justice Sotomayor drives it home especially by also at the same day, there was another case involving qualified immunity where people asked the Supreme Court to intervene and correct an error by the lower courts in the other direction.

a woman named Priscilla Villareal, who's a local reporter and troublemaker, who was arrested for having the temerity to, you know, talk to public officials and report about it on Facebook.

And so she sued and the Fifth Circuit said, you know, the police officers get qualified immunity on very dubious grounds.

And Justice Sotomayor said, well, look, why don't we take this case too, right?

If we're going to be in the business of second guessing whether or not lower courts have gotten the adjudication of qualified immunity cases right, like, why don't we take some on both sides?

Now, I will say, sometimes the court does provide an explanation.

So I was making fun of all the cases earlier where the court steps in because a lower court might grant somebody a writ of habeas corpus.

And there the Supreme Court has said explicitly, the reason we do this, even though we don't normally engage in error correction, is because there are a bunch of lower court judges out there who don't believe in our restrictions on habeas corpus.