Federal Judge Says It’s Time To End The ‘Mistake’ Of Qualified Immunity While Handling A Bogus Murder Charge

Qualified immunity is a mess. It’s a mess the Supreme Court created and, to date, seems largely unwilling to fix (despite the occasional remand).

The theory of QI is this: law enforcement officers (and other government employees) should be granted forgiveness for blowing constitutional calls during rapidly evolving situations potentially involving life and death.

And it would be great if that’s how qualified immunity was applied. But instead it’s summoned as a “get out of litigation free” card every time a cop (or other government employee) gets sued. While it may have limited usefulness in cases where officers are under fire or facing other life-threatening situations, it should not be applied at all when time isn’t a factor.

The problem is that the Supreme Court has made the rules of QI very clear: assume QI at all times and only deny it when there’s no possible way to avoid doing so.

Years of cops hollering QI at the drop of a lawsuit has pushed some courts and judges to the limits of their patience. Most notably, new appointee to the Fifth Circuit, Don Willett, called bullshit on qualified immunity shortly after taking his seat at this appellate court:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What Willett points out is the hamstringing of lower courts by the top court in the land. The discussion is no longer about the perceived rights violation, but rather whether or not even the stupidest cops in the nation would be able to comprehend precedential court rulings that might have an effect on their police work.

The problem with this blistering dissent is that it’s a dissent. The majority still rules. The other problem is that Willett does his work in the federal circuit that’s most likely to grant qualified immunity to police officers.

In the case Willett handled, officers violated rights by performing a warrantless search of a health care provider’s office. There were no “split second” decisions to be made and at no time did officers “fear for their safety” because of threats or violence emanating from the target of their (illegal) search.

That’s not how QI should be used. It should only apply in the way the Supreme Court originally worded its precedent: in rapidly evolving situations where officers needed to react quickly, rather than consult their “Precedent For Dummies” handbooks.

The same sort of thing has happened here. In this case, handled by a Mississippi federal court, there were no split-second decisions to be made. Instead, during the course of murder investigation (something that can take weeks, months, or years), a law enforcement officer decided the best course of action would be to frame an innocent person.

From the decision [PDF]:

For nearly two years, the State of Mississippi falsely accused Desmond Green of capital murder. A detective used a lying, drug-impaired jailhouse informant to lock Green up. The detective also steered the informant to select Green’s face from a photo lineup. It was a horrifying wrong.

[…]

The informant eventually recanted. The State then dropped the charges. But the ordeal cost Green almost two years of his life.

The exonerated man sued a number of government entities with the primary target being the detective (Jacquelyn Thomas) who ensured he was locked up for a crime he didn’t commit.

But he went one step further. He asked the federal court to rule on the constitutionality of qualified immunity itself. As the court notes during the opening of its decision, Green makes a good point. As the law stands now, the court can find Green’s rights were violated while also finding Green cannot pursue a lawsuit against the person who coerced a lying informant to give her all the “evidence” she needed to lock up an innocent man.

Green has found a receptive audience, at least at the lowest level of the federal judiciary:

The Court agrees with these calls for change. Congress’s intent to protect citizens from government abuse cannot be overridden by judges who think they know better. As a doctrine that defies this basic principle, qualified immunity is an unconstitutional error. It is past time for the judiciary to correct this mistake.

Obviously, the court denies the lying detective’s request for immunity. But it goes on to attack the Supreme Court-created escape hatch favored by lawbreakers who work in law enforcement.

First, it reminds other courts about what Section 1983 (the law giving citizens the power to sue government employees over rights violations) actually is: it’s the response from Congress to the sad fact that law enforcement was still filled with white supremacists following the end of the Civil War. The Ku Klux Klan waged war on freed slaves and other black citizens, fully supported by law enforcement officers who were either KKK members or fully supported these acts of violence.

Section 1983 is actually the “Ku Klux Klan Act of 1871.” Few plaintiffs cite the act’s full name. Police officers never do. But from Section 1983 lawsuits, the Supreme Court erected “qualified immunity.” It was not created by an act of law. It belongs solely to the nation’s top court. And until legislators pass a law abolishing it, it will remain the overriding “law” in lawsuits like these — lawsuits only allowed to exist because law enforcement in the United States was indistinguishable from the Ku Klux Klan following the end of the Civil War.

The law itself imposed liability. The Supreme Court’s interpretation of the law does the opposite: it gives cops a way to escape liability long before all issues (including differences in testimony, evidence, etc.) have been resolved. It means cops don’t even have to answer the allegations of plaintiffs. All they have to do is press the QI eject button and hope courts won’t ask them to contribute to the resolution of open evidentiary issues.

The court continues its history lesson, suggesting the qualified immunity concept is just as questionable as the post-Civil War behavior of law enforcement officers.

That all changed in Pierson v. Ray, a case arising out of Jim Crow Mississippi.

In Pierson, police officers in Jackson arrested and jailed peaceful ministers who entered a “White Only” waiting room in a bus terminal. The ministers eventually beat the bogus criminal charges in Mississippi state court, then sued the police officers in federal court for violating their constitutional rights, as guaranteed by the Ku Klux Klan Act.

On appeal, the Supreme Court decided that the police officers could assert a form of immunity—a “[]qualified immunity”— by claiming that they acted in good faith when they arrested the ministers to prevent violence. The Justices derived this immunity from good-faith and probable cause defenses available to officers facing common law claims.

Reasonable (as in “reasonable officer”)? Not really.

The officers had no proof that the ministers were a threat to public safety. The true threat came from the menacing crowd of 25 to 30 bystanders “in a very dissatisfied and ugly mood,” “mumbling and making unspecified threatening gestures,” and “threatening violence.” Pierson, 386 U.S. at 553. The officers never even claimed a good faith belief that the ministers had violated the law. It was as if the officers had arrived at a hostage situation, protected the kidnappers, and arrested the hostages.

Qualified immunity can be directly liked to the Supreme Court deciding to give officers a free pass on allowing a potentially violent heckler’s veto decide what black people could or could not do in the United States more than 100 years after the end of the Civil War.

The court sums up its history lesson this way:

It is difficult to see qualified immunity’s creation as anything other than a backlash to the Civil Rights Movement.

The court continues through the rest of Green’s claims against the government and this detective. It says Green brings a bunch of evidence that supports his claims. It then says the detective brings little more than repeated invocations of immunity and counterclaims that are mostly of the “well, it’s not the worst thing a cop can do” variety.

From then on, the court advances Green’s other case: that federal courts declare qualified immunity itself to be unconstitutional. Here’s part of the Mississippi court’s opening salvo in support of Green’s “kill QI dead” assertions:

[Qualified immunity] adjudicate cases—it ends them—rather than channel them into a better forum brought by parties with a more concrete stake in the outcome. It is so removed from the democratic process that it merits the most stringent scrutiny.

I think “democratic” is a poor choice of words. The rest is bang-on. QI short-circuits the judicial process. And, in doing so, it prevents plaintiffs from presenting their cases fully, which would appear to violate the guarantee that citizens can seek redress from their government for harming them. Sure, allowing people to file Section 1983/Ku Klux Klan Act suits handles the redress part (technically), but allowing the government entities they sue to escape the lawsuit before having to fully address the allegations gives the government options citizens have no access to.

Without explicitly saying so, the court says it’s pretty fucking odd that it’s almost always the same sort of government employees invoking qualified immunity to get out of lawsuits before all the facts are in. And as for the Supreme Court’s rationale that immunity is necessary to prevent the government from being expected to shoulder the burden of (supposedly) frivolous litigation, the same court has provided no similar protections for private entities just as likely to be sued as law enforcement officers.

Pause for a moment to observe how aberrant these justifications are. Emergency room physicians are critical in a real life-or-death sense. But when they are sued for negligence, we take for granted that they will have to respond and, perhaps, be subjected to discovery about their actions. The economy relies on banks to preserve, grow, and allocate resources. In the event a bank engages in fraud or facilitates a Ponzi scheme, though, its victims can come to court and ask to be made whole.

The same is true for just about every realm of life. The judicial process is how our democracy provides “tribunals for the peaceful resolution of all manner of disputes.” Chief Justice John G. Roberts, Jr., 2015 Year-End Report on the Federal Judiciary at 2 (emphasis added). So it is odd for the judicial process to privilege government over every other industry. It’s important to keep the public sector functioning, to be sure, but we also need functional hospitals, utilities, financial institutions, and supply chains. And in all of those systems, we accept the costs and distractions of litigation as necessary consequences of a fair dispute resolution system.

The Supreme Court nevertheless assumes that qualified immunity is necessary to privilege government operations over non-government operations. Yet little to no evidence supports the assumption.

Then it compares the loss of life and liberty in criminal prosecutions to the possible loss of government funds in cases where qualified immunity is raised. Cops get to escape lawsuits if they’ve managed to violate rights with actions that do not specifically align with previous rights violations actually held to be rights violations by the courts handling those cases.

That standard doesn’t apply to citizens accused of crimes, however. Nor does it apply to civil defendants, who aren’t able to argue their actions were so novel they couldn’t possibly be expected to realize they were fraudulent, murderous, or whatever.

In a criminal case, the government can convict and send you to prison even if no one had ever committed that crime in quite the same way before. The prosecutor doesn’t have to prove that the unlawfulness of your conduct was “beyond debate.” You can lose your liberty for new and creative kinds of criming…

But citizens are expected to hold themselves to a higher standard than courts are willing to hold police officers to. Remember, a violation of constitutional rights is a federal crime. Just because it’s most often handled in civil litigation doesn’t mean it’s not a criminal act. Cops get an easy out. Anyone else accused of a crime has to go through the entire legal process, with their only hope being (perhaps) the tossing of some evidence if it was obtained unlawfully.

And what has America gained from qualified immunity? Not a goddamn thing.

The result is a world where courts let prison officials get away with putting someone in a feces covered cell for six days, rather than hold them accountable for violating the general principle: don’t make people sleep in other people’s feces.

The conclusion presented by this court is as short as it is self-evident. A cop railroaded an innocent man on murder charges. He lost two years of his life — possibly the two most miserable years of his existence. The allegations should be met with evidence, not a rote invocation of a privilege all law enforcement officers feel they deserve. The federal judiciary needs to dismantle qualified immunity and allow the judicial process to take its true course.

Desmond Green has suffered two injustices. The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end.

Exactly. But if the Supreme Court is unwilling to walk back one of its own doctrines, it should at least have the intellectual honesty to insist it only be applied as intended: during split-second decisions in objectively dangerous situations. Everything else just encourages cops to violate rights in perpetuity.