Federal Judge Slams Qualified Immunity
{Steve Lehto | 23 May 2024}

It's just one judge, but it's a start.

Supreme Court Decision Slammed by Judge
{Nick Mordowanec | 22 May 2024}

A Mississippi judge rebuked the U.S. Supreme Court for its definition of qualified immunity stemming from a 2020 murder case, with one legal analyst telling Newsweek that it's part of a public shift in the law's interpretation.

Carlton Reeves, a district judge in the Southern District of Mississippi, wrote an opinion published Monday that the qualified immunity doctrine was "invented by the U.S. Supreme Court in 1967" and essentially means that people wronged by government agents cannot sue the agents unless the nation's highest court previously found "substantially the same acts to be unconstitutional."

But Reeves said the doctrine has come to be an "unconstitutional error" and that "it is past time for the judiciary to correct this mistake."

"The Court agrees with these calls for change," Reeves wrote. "Congress' 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."

He used the example of a 2020 homicide and the false accusation of a Black man, Desmond Green, who was accused of capital murder in the shooting death of Nicholas Robertson in Jackson, Mississippi. Another man, Samuel Jennings, told law enforcement that Green was responsible for Robertson's death.

Green was subsequently indicted by a grand jury, even though he denied the allegations and any role in Robertson's death.

As Reeves noted, Green was detained in the Hinds County Detention Center and stayed in the "inhumane" facility while awaiting trial. Green claimed the jail was infested with rodents and snakes, that his cell mate was stabbed, that his food was moldy and stale, and that he often had to sleep on the cell floor while enduring constant yelling, violence and fear.

Jennings recanted his story about Green's involvement in March 2022, telling public defenders that he was drug-impaired when he made a baseless accusation that Green committed the murder.

Green, who lost nearly two years of his life, sued the detective who locked him up, her employer (the city of Jackson, Mississippi) and the operator of the Hinds County Detention Center.

"Green is now on the precipice of being wronged a third time," Reeves wrote. "Not by a rogue officer or jailer, but by the law itself. Because the detective says the legal doctrine of qualified immunity requires the Court to dismiss Green's claims against her."

Recent backlash against qualified immunity

Clark Neily, senior vice president for legal studies at the Cato Institute, told Newsweek via phone on Wednesday that Reeves' ruling dates to federal civil rights law following the Civil War.

It's known as 42 U.S.C. § 1983 and was enacted by Congress due to local government officials like sheriffs, constables, etc., participating in the oppression of newly freed Blacks and wanted to provide a federal remedy for anybody (although Blacks were victims).

Reeves in his opinion referred to it as the "Ku Klux Klan Act."

But in 1967, the court created an exception that essentially provided law enforcement officials with qualified immunity to prevent them from being financially culpable in what could be deemed as frivolous lawsuits.

The advent of qualified immunity was actually a two-step process with the 1967 case (Pearson v. Ray) creating a so-called "good faith" standard, Neily said, and then a 1982 case (Harlow v. Fitzgerald) expanding it to the current "clearly established" standard that requires plaintiffs to identify a nearly identical preexisting case in order to defeat qualified immunity.

Neily explained that the court's ruling translated to individuals (victims of purported crimes at the hands of government employees) having to identify previous cases in their jurisdictions in which police violated rights in a seemingly identical way.

If that case doesn't exist or is not factually similar, even though rights were violated or believed to have been, officials would "get a free pass" and the case would be dismissed. He called it "a very broad law."

"Qualified immunity has become an extremely controversial legal issue because it creates this defense out of whole cloth," Neily said. "Courts are not really supposed to make policy; they're supposed to rule on existing laws."

He said the interpretation of the law also "creates a tremendous amount of injustice," which Reeves delves into in his 21-page opinion, saying in part that the government can imprison people for conduct they were unaware was as illegal.

Neily called it "a goose-gander problem" in which ordinary citizens who are unaware of laws could go to prison, yet police officers who are trained about issues like probable cause and the Fourth Amendment are likely more aware of the legal repercussions.

Joanna Schwartz, a law professor at UCLA and faculty director of the David J. Epstein Program in Public Interest Law and Policy, wrote in a blog post that Reeves "is one of the most eloquent and powerful critics of qualified immunity doctrine on the bench."

Reeves mentioned Schwartz's research in his opinion.

"Judge Reeves denies defendants qualified immunity, concluding that they violated clearly established law," she wrote. "Yet he goes further, demonstrating why qualified immunity is unsupportable as a matter of history, text and policy.

"He additionally argues that any concerns about overturning settled law—referred to as stare decisis—ring hollow after the Court's decision in Dobbs, overturning Roe v. Wade."