General skepticism about qualified immunity, a legal doctrine that makes it difficult to sue state and local government officials who violate rights, has brought together an odd coalition over the years to put it mildly and challenge some stereotypes of traditional partisan fault lines. A federal judge this week announced the following alliance: Roe vs. WadeIf the Supreme Court precedent clearly states abortion as a constitutional right, really I despise qualified immunity.
Stay with me here. That connection was entrenched in comments about a police investigator who spent nearly two years costing an innocent man's life using barely intelligible statements from someone in jail who was reportedly high on methamphetamine. Selected defendant Desmond Green, whom she selected from a photo lineup after her witness explicitly selected someone else. As a result, Green was arrested on capital murder charges and spent 22 months in the Hinds County Detention Center. He claimed it was infested with rodents and that his cellmate was stabbed.
He filed a lawsuit. Jackson Police Department Detective Jacqueline Thomas countered that she believes state and local government employees are entitled to immunity that protects them from civil lawsuits if they violate the law in a way that has not been “clearly shown” to be unconstitutional by prior precedent.
Judge Carlton Reeves of the Southern District of Mississippi disagreed, ruling that such blatant misconduct did in fact violate clearly established law. But the fact that the officer in question could reasonably assert that defense, and that the case dragged on for years through an appeal in which she was likely to win before the U.S. Court of Appeals for the Fifth Circuit, presents an opportunity to discuss the doctrine of standing. I opened it. As a general matter, exemptions were encouraged by Green's lawsuit, which argued that it was an “unsound law.” Reeves took his chance.
In 1871, Congress passed Section 1983, which created a way for victims of civil rights violations to file federal lawsuits. Qualified immunity did not exist as a defense to liability until the Supreme Court legislated it into existence in a 1967 case. Pearson v. Ray, The judge created a “good faith” exception for lawsuits against state and local government employees accused of misconduct. The court then strengthened the defense with the following ruling in 1982: Harlow v. FitzgeraldThis has created a meticulous and rigorous “clearly established” standard that can ruin a plaintiff if he or she cannot find prior court precedent for a nearly identical situation.
In other words, qualified immunity came into existence not because of the legislative process but because the Supreme Court weakened a nearly century-old federal law, albeit with good intentions. This grants qualified immunity, in a sense, to the same line of abortion jurisprudence.
“Opponents of qualified exemptions advance many of the same kinds of arguments used by abortion opponents,” Reeves wrote in his opinion. “The main complaint in both cases is that the Supreme Court ignored authoritative texts “to balance implied rights and interests,” Reeves said. This is especially true in the case of qualified immunity. “This is especially true when it comes to qualified immunity,” Reeves said. It's no mystery, Reeves says, because they already explicitly decided to do it 150 years ago.
in Dobbs v. Jackson Women's Health OrganizationDecision overturned in 2022 Roe vs. Wade, “Instead, the court reasoned that voters, not judges, should resolve trust interests,” Reeves wrote. Even if someone supports abortion access, this is not a controversial premise. The notion that it is inappropriate for judges to “legislate from the bench” as opposed to lawmakers legislating from the floor of Congress has long been a classic criticism. That's fair. And it should not be applied selectively.
The Supreme Court seems reticent to recognize immunity as a doctrinal matter. They have overturned outrageous rulings in recent years, but in 2020, for example. rejected Fifth Circuit decision grants qualified immunity to correctional officers who: locked up a psychiatric inmate Although the presumption was in rooms contaminated with feces and sewage, the judges objected to a broader review of the doctrine. Perhaps they would prefer to let Congress do the work. The problem, of course, is that Congress has done its job and the Supreme Court has decided it knows better.
But there is something else about qualified immunity that makes the doctrine even more relevant in conversations about delegating such matters to the people. It is especially important when considering the core issue here that voters, not judges, must “solve the dependency problem,” as Reeves puts it. Should alleged victims of government abuse be given the privilege of a jury trial? Overcoming qualified immunity does not mean that victims have won their lawsuits. That means they will make statements in front of a jury. And if you lose on qualified immunity, a decision made by judges and not voters, the courthouse doors will close before your trial begins, losing your chance to get ahead of your peers.
Reeves' recent ruling is not the first time he has won immunity. In 2020, he lamented that the status quo was “bizarre and unsustainable.” And in that same decision, he reluctantly offered police protection, in a situation virtually unprecedented in similar circumstances, that allegedly cost a man $4,000 in damage to his car while they conducted an extensive drug search that turned up no contraband. “This court must apply the law as stated by the Supreme Court,” Reeves wrote. “Under that law, an officer who turned a brief traffic stop into a life-altering ordeal of nearly two hours is entitled to qualified immunity. Accordingly, the officer’s motion to seek that amount is granted.”