The Death of Qualified Immunity?

Popular Information reported on the recent decision that qualified immunity for police officers is unconstitutional. It’s about time. Qualified immunity is a made up doctrine to protect clearly unlawful behavior. In practice, qualified immunity has given a free pass to law enforcement officers who engaged in egregious violations of Constitutional rights. Qualified immunity is an archaic theory used to protect racist cops.

In 1967, when the Supreme Court considered Pierson v. Ray, which involved Black ministers who were arrested for entering a “Whites Only” bus terminal waiting room. The ministers beat the criminal charges in court and then sued the police officers who arrested them, arguing their constitutional rights were violated.

The Supreme Court arbitrarily decided that the police officers were entitled to “qualified immunity” because they had a “good faith belief” that they had to arrest the ministers to prevent violence. Total BS. No basis in the Constitution or Federal or State law. Just made it up.  Also, the police officers actually “had no proof that the ministers were a threat to public safety.” In reality, there was a crowd of about 30 bystanders “threatening violence” against the ministers.

For the last 60 years later, qualified immunity protected racist police officers and the White Patriarchy. However, there is hope.

Samuel Jennings was arrested for burglary and grand larceny. Jackson Police Department Detective Jacquelyn Thomas got Jennings while high on meth to provide a rambling written statement pinning the blame for a murder on an innocent man named Desmond Green. Thomas used this unreliable and uncorroborated statement to convince a grand jury to indict Green for murder. For 22 months, Green was held in a jail “full of violence, rodents, and moldy food.” According to Green, he “often did not have a mattress, or even a pad, to sleep on.” Green said he “constantly feared for his life.”

Jennings recanted his story in March 2022. Damningly, Jennings said that Thomas presented him with a photo lineup of suspects, and Thomas “pointed to the 5th photo of [the] lineup,” and Jennings agreed to get a lessen sentence.

Green was finally released from jail on April 21, 2022.

In February 2023, Green sued Thomas, alleging that the detective violated his Constitutional rights under the Fourth and Fourteenth Amendments. Thomas sought to have Green’s lawsuit against her dismissed, citing the doctrine of qualified immunity. A federal judge, Carlton Reeves, rejected Thomas’ motion.

First, Judge Reeves found that using the Supreme Court’s existing standard, Thomas is not protected by qualified immunity. But then he went further.

In a decision praised by legal scholars for its “power and beauty,” Reeves establishes why the doctrine of qualified immunity, which grants immunity to law enforcement officials sued for misconduct, is “unsupportable as a matter of history, text, and policy.” Reeves calls on the Supreme Court to acknowledge its mistake and eliminate the doctrine of qualified immunity entirely.

A Reuters investigation in 2020 found that, between 2015 and 2019, more than half the time police officers are sued for using excessive force, appellate courts dismiss the suit on the basis of qualified immunity. Supreme Court Justice Sonia Sotomayor argues that the doctrine of qualified immunity has increasingly become an “absolute shield” for police officers’ misconduct.

Since 1967, the Supreme Court has expanded qualified immunity, making it almost impossible to hold cops accountable for misconduct.

UCLA Law Professor Joanna C. Schwartz argues that the concept of qualified immunity for law enforcement based on “clearly established statutory or constitutional rights” is incoherent.

As an alternative, he proposes trusting juries to make judgments as to whether the conduct of law enforcement officers violates the Constitution as the Seventh Amendment guarantees.