General skepticism toward qualified immunity, the legal doctrine that makes it difficult to sue rights-violating state and local government officials, has over the years brought together weird coalitions, to put it mildly, and challenged some of the stereotypes about traditional partisan fault lines. A federal judge this week floated one such alliance: If you hated Roe v. Wade, the Supreme Court precedent that enshrined abortion as a constitutional right, then you should really disdain qualified immunity.
Stay with me here. That connection came nestled in an opinion concerning a police detective who allegedly cost an innocent man almost two years of his life by using a nearly-incomprehensible statement from someone in jail, who was reportedly under the influence of meth, and then guiding that same person to pick her chosen defendant, Desmond Green, out of a photo line-up—after her witness explicitly picked someone else. As a result, Green was arrested for capital murder and spent 22 months in the Hinds County Detention Center, which he claims was infested with rodents and where his cellmate was stabbed.
He sued. Detective Jacquelyn Thomas of the Jackson Police Department countered that she was entitled to qualified immunity, which shields state and local government employees from civil suits if they violated the law in a way that has not been “clearly established” as unconstitutional in prior case law.
Judge Carlton Reeves of the U.S. District Court for the Southern District of Mississippi disagreed, ruling that such blatant misconduct indeed violated clearly established law. That the officer in question could reasonably assert such a defense, though—and drag out litigation for years with appeals, where it is plausible she will win at the U.S. Court of Appeals for the 5th Circuit—opened a window to discuss the doctrine of qualified immunity as a general matter, encouraged by Green’s lawsuit, which asserts it is “unsound law.” Reeves took the opportunity.
In 1871, Congress passed Section 1983, which established an avenue for victims of civil rights violations to file federal lawsuits. Qualified immunity did not exist as a defense from liability until the Supreme Court legislated a version of it into existence in the 1967 case Pierson v. Ray, in which the justices created a “good faith” exception to suits against state and local government employees accused of misconduct. The Court then strengthened that defense in 1982 with its decision in Harlow v. Fitzgerald, which created that meticulously exacting “clearly established” standard that can doom plaintiffs if they are unable to find a prior court precedent with nearly identical circumstances.
In other words, qualified immunity came into existence in spite of, not because of, the legislative process, with the Supreme Court—however well-intentioned—watering down a near-century-old federal statute. That, in some sense, puts qualified immunity in the same family as abortion jurisprudence.
“Opponents of qualified immunity advance many of the same kinds of arguments that opponents of abortion used,” wrote Reeves in his opinion. “In both instances, the primary complaint was that the Supreme Court had disregarded authoritative texts” in order “to balance implied rights and interests.” That is especially true in the case of qualified immunity, Reeves notes, as lawmakers already expressly decided what should happen in such cases. It is not a mystery. They enshrined it into law a century and a half ago.
In Dobbs v. Jackson Women’s Health Organization, the 2022 decision overturning Roe v. Wade, “the Court instead thought voters should resolve reliance interests, not judges,” writes Reeves. That isn’t a controversial premise, even if one supports abortion access. The notion it is inappropriate for judges to “legislate from the bench,” as opposed to lawmakers legislating from Congress, has long been a hallmark criticism. It’s a fair one. And it should not be applied selectively.
The Supreme Court, for its part, has been reticent, it seems, to take up qualified immunity as a doctrinal matter. While they have reversed a few ridiculous rulings in recent years—in 2020, for example, they rejected a decision from the 5th Circuit awarding qualified immunity to correctional officers who locked a psychiatric inmate allegedly in feces- and sewage-infested cells—the justices have demurred at reconsidering the doctrine broadly. Perhaps they’d prefer to let Congress do its job. The issue there, of course, is that Congress did do its job, and then the Supreme Court decided it knew better.
But there is something else about qualified immunity that makes the doctrine even more relevant in a conversation about such issues being relegated to the people. That voters, not judges, should “resolve reliance issues,” as Reeves says, is particularly important when considering the core issue at stake here is: Should an alleged victim of government abuse get the privilege of a jury trial? A victim who has overcome qualified immunity does not mean they won their case; it means they get to state it before a jury. And losing on qualified immunity grounds—a decision made by judges, not voters—robs them of the opportunity to go before their peers, with the courthouse doors shut before any trial can begin.
Reeves’ recent ruling is not his first brush with qualified immunity. In 2020, he lamented that the status quo was “extraordinary and unsustainable.” And then in that same decision, he begrudgingly gave the protection to a cop who allegedly cost a man $4,000 in vehicle damages while conducting an extensive drug search that produced no contraband, as there was no precedent with near-parallel circumstances. “This Court is required to apply the law as stated by the Supreme Court,” Reeves wrote. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”
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