The Catch-22 of Qualified Immunity
by Douglas Ankney
Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit and Judge Carlton Reeves of the U.S. District Court for the Southern District of Mississippi have authored opinions excoriating the doctrine of qualified immunity (“QI”). QI is a judicially created doctrine manufactured by the U.S. Supreme Court in the 1967 case of Pierson v. Ray, 386 U.S. 547 (1967).
Rooted in good-faith and probable cause defenses available to law enforcement in claims at common law, QI originally applied only to cases where police officers accused of violating constitutional rights were shielded from liability if their actions were based on split-second decisions where life and safety were in issue. But over time, the Supreme Court has expanded QI so that currently courts are to presume QI shields government officials for violations of constitutional rights unless the plaintiff(s) can show prior court precedent in a similar case “clearly established the right that was allegedly violated.” If the plaintiff(s) fail to meet this heavy burden, the case is dismissed summarily—no argument, no tribunal, end of litigation.
Judge Willett pointed out in his concurring opinion in Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018) (Willett J., concurring), that lower courts are hamstrung because the Supreme Court’s expansive interpretation and application of QI has created a proverbial 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.”
And Judge Reeves’ opinion in Green v. Thomas, 2024 U.S. Dist. LEXIS 90805 (S.D. Miss. 2024), concerned a 42 U.S.C. § 1983 suit against Detective Jacquelyn Thomas of the Jackson, Mississippi, Police Department. In that suit, Plaintiff Desmond Green alleged that Thomas guided a meth-addicted “witness” and jailhouse informant to pick Green’s photo from an array (after the witness had explicitly picked another person’s photo) in order to have Green arrested on charges that included capital murder. Green spent 22 months in a rodent-infested jail cell where his roommate was stabbed before the “witness recanted,” and the State dropped the charges.
Judge Reeves determined that Green’s right was clearly established and denied QI to Thomas because her blatant misconduct violated Green’s rights. But Reeves also extensively criticized QI, writing “[o]pponents of qualified immunity advance many of the same kinds of arguments that opponents of abortion used. In both instances, the primary complaint was that the Supreme Court had disregarded authoritative texts [in order] to balance implied rights and interests.”
Reeves noted this was especially true in the context of QI. That is, Congress enacted the “Ku Klux Klan Act of 1871,” which was eventually codified as 42 U.S.C. § 1983. The purpose of the Ku Klux Klan Act of 1871 was to hold members of law enforcement who sympathized with the Ku Klux Klan and other white supremacists accountable for violating the constitutional rights of newly freed slaves and other Black Americans. By passing the Ku Klux Klan Act of 1871, Congress clearly legislated how offenders in law enforcement are to be held accountable. But the Supreme Court, via its creation of QI, “legislated from the bench” and substituted its own authority in lieu of the U.S. Congress’, Reeves argued.
Courts today presume QI applies in § 1983 lawsuits—presumptively shielding law enforcement and other government officials from accountability for violating the constitutional rights of Americans. This is the complete opposite of the intent of the Ku Klux Klan Act of 1871. Today, the burden is on the plaintiff(s) to demonstrate that QI is inapplicable—a burden that is often impossible to meet because no court has previously decided the right in issue is “clearly established.”
Sources: techdirt.com, reason.com
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