An Unqualified Disaster

     Here we go, Sancho. You're really going to do this, aren't you? Why not? It's something that annoys me. And I've got lawyer friends out there who will be more than happy to let me know, in no uncertain terms, if I've gotten something hideously wrong...right? Oh, please. They're salivating at the opportunity to make you look stupid! So, fire away, Boss! Nice, my legal-eagle friend. And...we're off! 

    After much reading, remembering, and pondering...I came across a couple of essays that reminded me District Court judges are pretty much the bottom rung of the federal judicial hierarchy. They hold hearings, decide motions, and preside over trials. None of them make precedent; they apply it. So it's rare for one of these judges to publicly criticize decisions from higher courts they are legally bound to apply...let alone criticize a Supreme Court decision. But that's exactly what happened back in late May, when Mississippi Judge Carlton Reeves called for the eradication of qualified immunity. 

    Reeves wrote, "In a nutshell qualified immunity is a legal defense that police and other government officials can assert in civil rights cases to defeat otherwise meritorious claims by arguing that it was not yet clearly established that the particular thing they did - whether shooting a fleeing suspect in the back or stealing $225,000 worth of cash and rare coins while executing a search warrant - was unconstitutional."

    This came about because Judge Reeves had just explained in a May 20 opinion denying qualified immunity to a Jackson, Mississippi detective who helped frame an innocent man for murder, that "there are so many problems with that doctrine that it's hard to know where to start." Well, I think I do. In 1983, the Supreme Court read into the nation's premier civil rights law, something named 42 U.S.C. 1983, the defense of qualified immunity, ignoring the fact that the original statute makes no mention of any immunities, let alone qualified, whatsoever. The civil rights law mentioned above was written in 1871 and was designed to protect newly freed African-Americans from the predations of badge-wearing Klansmen and other tyrannical government officials. How the Supreme Court read a "qualified immunity" statute into that law is a question that Judge Reeves has no answer for. 

    Reeves also noted that the practical consequences of qualified immunity, which include a free pass for a cop who shot an innocent boy in the leg from eighteen inches away while firing away at a non-threatening family dog; letting a jailer off the hook who stood and watched without calling 911 as a suicidal prisoner hanged himself with a telephone cord inside his own cell; and finding "no clearly established" right to be locked up "in a frigid cell, covered in other person' feces and forced to sleep naked in sewage" for SIX DAYS (emphasis mine) because the only case on point held that "prisoners couldn't be housed in a cell teeming with human waste for months on end." (That last case was so obviously wrong that the Supreme Court summarily reversed without briefing or argument.) I could go on with examples of qualified immunity being granted to officers who do frighteningly stupid and heinous things, but I think my point has been made.

    All that said, here's the part that makes your head spin; Judge Reeves reviews the policy justification for qualified immunity and shows how each of them is completely baseless. So, we're not promoting fairness here by putting police on notice for the simple reason that they neither read nor receive training on relevant court decisions beyond some elementary instruction at the police academy. AND, police never face any financial ruin from monies awarded to the defendant because they are indemnified by their employers (the city, state, or federal government), meaning the costs are passed along to the taxpayer. In fact, according to Joanna Schwartz of the UCLA School of Law, far from streamlining litigation and eliminating unmeritorious cases, qualified immunity "may, in fact, increase the costs and delays associated with constitutional litigations." The list of baseless assumptions, also, goes on and on. 

    The final critique is the saddest, at least for me. Qualified immunity has managed to create a world in which it is very easy for the government to convict and imprison people for crimes they had no idea existed and conduct they never imagined might be illegal, but very difficult to subject a police officer or other government official to mere civil liability for conduct that everyone agrees was unconstitutional but in a weirdly novel way. I mean, we're talking a lot about qualified immunity recently because of the actions of a few, in the grand scheme of things, police officers. And let me repeat the phrase..."a few." As of 2022, there were approximately 708,000 police officers in the United States. I have no intellectual or moral problem guessing that approximately 2% of them are bad/evil cops. (And if you think I'm understating, that's fine. Feel free to come up with your own, fair, number.) That's around 14,000 police out of 708,000. Yes, that's too many. But it's how the world works. And that two percent is what fuels headlines due to heinous acts against young men and women like George Floyd, Michael Brown, Freddie Gray, and Breonna Taylor. As well as the heinous acts committed against hundreds of young white men and women, every year. And the fact that officers who commit these acts, as well as other types of illegal acts, can hide behind the wall of qualified immunity is abhorrent to me.

    I shouldn't have to do this, but just in case I get the obligatory hate texts from some people, let me state again that I am unashamedly pro-Police. I know police officers personally, from Bucks County to Boston. They put their lives on the line every single day. I salute the vast majority of them. But...and there's always a but. 

    So, where does that leave us? Will Judge Reeves' words make any difference, or is he leaning into a howling wind where no one will hear him? Not by itself...but perhaps. And it does add to a steady drumbeat of dissent and disdain for something that, it seems to me, was made up out of thin air and had nothing to do with the original law it was tacked on to, and therefore had no business being "invented" in the first place. It just seems like bad law. I'm no lawyer; I don't even play one on television, but I do believe that everyone should be accountable. And that includes police and Supreme Court justices. An ostrich can only bury its head in the sand so deep for so long.

write to Peter: magtour@icloud.com