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Qualified immunity: Fix It 

As for prospects for reform, what do we have? A mute Supreme Court and a likely-to-be hogtied Congress. 

 

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Photo by Bill Oxford on Unsplash

Qualified immunity is a Supreme Court-invented doctrine that gives police and other public officials broad immunity from civil lawsuits even in cases where an officer of the law has clearly violated a person’s federal constitutional rights. Qualified immunity is not at issue in the prosecution of such criminal cases as that of former Minneapolis police officer Derek Chauvin. Nevertheless it is one of many structural factors in the law that have bestowed broad benefit-of-doubt to police officers and made it next to impossible to hold them accountable for wrongdoing.

There are two ways to rein it in. The Supreme Court could reverse some of its sweeping decisions concerning qualified immunity. That’s not going to happen any time soon. On June 15, the justices declined to hear any of the eight qualified-immunity cases pending before the court. Or Congress could amend the federal statutes pertaining to it.

Sens. Amy Klobuchar and Tina Smith have signed on to the Senate version (S 3912) of the Justice in Policing Act of 2020, which among its many provisions promises to reform qualified immunity. To date, Rep. Betty McCollum is the only member of the Minnesota congressional delegation to sign on the House version (HR 7120). Rep. Ilhan Omar has signed on as one of 54 cosponsors of HR 7085, a stand-alone bill to overturn the doctrine of qualified immunity introduced by Reps. Ayanna Pressley (D-Massachusetts) and Justin Amash (L-Michigan). 

If you are asking, “What is qualified immunity?” you are not alone. I had never heard the term before May 25, the day George Floyd was killed. In the churn of daily coverage of peaceful protests and calls for police reform in the aftermath of his death nothing I have read really shines a light on the doctrine. If everyday people like me understood the origins and implications of qualified immunity, more everyday people, I believe, would be calling for sweeping and swift change.

The history begins with the federal Civil Rights Act of 1871, also known as the Ku Klux Klan Act, which was passed to combat the atrocities of white supremacy groups in the aftermath of the Civil War. The act gave President Ulysses S. Grant the power to suppress state disorders and to suspend the right of habeas corpus. Grant used these powers robustly, and as a result the first-generation KKK was quashed and did not rise up again until the Jim Crow era of the early 20th century. 

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The  1983 provision

Perhaps the act’s most important provision was codified into federal law as 42 U.S.C. §1983, Civil Action for Deprivation of Rights:  

Suzanne Winckler
Suzanne Winckler
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured….

The statute embodies a fundamental constitutional tenet: Where there is a right, there must be a remedy. The statute is (or was) designed to prevent rogue behavior of state-level agents from violating an individual’s federal constitutional rights under the pretext of “doing their job.” It seems simple and just. Nothing is simple and a lot of things are unjust. 

1967: Pierson v. Ray

Supreme Court justices invented the concept of qualified immunity as a defense in 42 U.S.C. §1983 lawsuits in the 1967 case Pierson v. Ray. The petitioners were a group of white and black clergymen on a prayer pilgrimage to promote racial integration who were attempting to use a segregated interstate bus terminal waiting room in Jackson, Mississippi, in 1961. In an 8-to-1 vote, the justices argued that the officials – Mississippi police officers who arrested the clergy on grounds of breaching the peace – while indeed committing constitutional violations were acting in “good faith” and therefore could raise a “qualified immunity” defense. Justice Earl Warren wrote the majority opinion. William O. Douglas cast the dissenting vote. 

The polite judicial language now often used in support of qualified immunity comes from the 2009 Supreme Court case Pearson v. Callahan. My representative, Rep. Pete Stauber, for example, cited this case in an email to me in his defense of qualified immunity. In this unanimous decision by the Roberts court, the justices wrote, “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” It is hard to argue with that calm language, especially in a case involving a methamphetamine dealer, a member of a cohort viewed as despicable in our culture. Despicable people, however, also have constitutional rights.

In Pearson v. Callahan, which centers on Fourth Amendment protections of unreasonable search and seizure, an informant of the Central Utah Narcotics Task Force, wearing a wire, entered the home of an alleged methamphetamine dealer to buy some meth. With completion of the purchase, his colleagues on the Task Force entered the home to conduct a search without a warrant. The Supreme Court justices ultimately determined that qualified immunity shielded the officers from violation of plaintiff’s Fourth Amendment rights. 

Rights violated but not redressed

A group of white and black clergymen in a segregated bus station in the midst of the Civil Rights Movement and a methamphetamine dealer plying his illicit trade during the height of the methamphetamine crisis have very little in common – except their constitutional rights (as guaranteed by due process and the First, Fourth, and Fourteenth Amendments) were violated but not redressed because of the powerful cultural benefit-of-doubt embedded in qualified immunity that resonates loudly in courts of law with regard to public law enforcement officers. 

While the Supreme Court has opted to remain silent, it is still worthwhile to consider brief summaries of three of the eight cases they declined to hear (with the salient issues as summarized by SCOTUSblog): 

In West v. Winfield the issue, which goes to the heart of the case without further details, is “Whether an officer who has consent to ‘get inside’ a house but instead destroys it from the outside is entitled to qualified immunity …”

 

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Baxter v. Bracey is a case involving a police officer who unleashed a police dog to apprehend a suspect who had already surrendered. The issue in part is “… whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background … should be narrowed or abolished.” 

Anderson v. the City of Minneapolis strikes close to home. It involves first responders who discovered a missing college student along the Mississippi River apparently frozen. They declared him dead at the scene instead of following protocol that calls for warming the body. One issue at stake is whether “… due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead. …” 

Sweeping, swift change is unlikely

It is now up to Congress to fix qualified immunity, but sweeping and swift change is unlikely. Sen. Tim Scott of South Carolina, the Republican Party’s only African-American senator, told CBS’ “Face the Nation” that qualified immunity is a “poison pill” and any legislation containing reforms of the doctrine is off the table for Republicans. 

Here we are. George Floyd is dead, as are recently Manuel Ellis (March 3, Tacoma), Breonna Taylor (March 13, Louisville), Mike Ramos (April 24, Austin), Dreasjon “Sean” Reed (May 6, Indianapolis), David McAtee (June 1, Louisville), and Rayshard Brooks (June 12, Atlanta). And what do we have? A mute Supreme Court and a likely-to-be hogtied Congress. 

Since May 25, I have tried to understand qualified immunity and its consequences for all of us. What haunts me most is the deeply painful irony that a provision in the 1871 Civil Rights Act designed to protect African-Americans from acts of violence perpetrated by the Ku Klux Klan in the guise of local law enforcement has been subverted by court decisions to protect law enforcement officers in no guise at all from killing African-Americans. 

Suzanne Winckler is a journalist who lives in Pike Township on the Iron Range. She has written for a number of publications, including Texas Monthly and The New York Times. She posts on the blog saaribampo.com.

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