The U.S. District Court for the Southern District of Mississippi issued a compelling decision Monday denying qualified immunity to a detective who falsely accused Desmond Green of capital murder based on a “lying, drug-impaired jailhouse informant” whom she steered to select Mr. Green’s face from a photo lineup.
The “horrifying wrong” of being wrongly accused and arrested was compounded by Mr. Green’s imprisonment for nearly two years in the Hinds County Detention Center, which was full of violence, rodents and snakes, and moldy food, where he endured “constant yelling, fighting, and threats,” often had to sleep on the bare floor, and “constantly feared for his life.”
After the informant recanted and prosecutors dropped the charges, Mr. Green filed a federal civil rights lawsuit against the Jackson police detective (as well as the city itself and Hinds County, which runs the jail) seeking justice for his wrongful prosecution and conditions of confinement.
The detective responded that Mr. Green’s suit should be dismissed under the doctrine of qualified immunity, a legal doctrine that, according to the court, “means people wronged by government agents cannot sue those agents unless the Supreme Court previously found substantially the same acts to be unconstitutional.”
In his 62-page order, District Judge Carlton W. Reeves concludes after a detailed legal analysis that the detective is not entitled to qualified immunity because her actions violated clearly-established law.
The court goes on, however, to address Mr. Green’s argument that qualified immunity is itself unlawful, setting out the historical context for the doctrine’s invention and tracing its evolution into what Justice Sonia Sotomayor has called “an absolute shield” against accountability for police officers accused of using excessive force.
Qualified immunity “has no basis in law,” the court concludes. “It is an extra-constitutional affront to other cherished values of our democracy.”
“Waves of Terrorism”
The federal statute under which Mr. Green sued the police detective is usually called “section 1983,” but the court insists on using the law’s formal name—the Ku Klux Klan Act of 1871—to underscore why Congress passed it in the first place. The decision sets the historical stage this way (citations omitted):
After the Civil War, white supremacists unleashed waves of terrorism across the South. Lawlessness was the order of the day. Groups like the Ku Klux Klan carried out “thousands of beatings, lynchings, and incidents of torture and mutilation.” “These atrocities were inflicted with impunity because judges, politicians, and law enforcement officers were fellow Klansmen and loyal sympathizers.” White supremacy empowered them to kill Black men, women, and children without fear of consequences.
EJI has documented nearly 2,000 confirmed racial terror lynchings of Black people by white mobs during Reconstruction, the 12-year period following the Civil War. Thousands more were attacked, sexually assaulted, and terrorized by white mobs and individuals who were shielded from arrest and prosecution.
In Reconstruction in America, EJI explains that white perpetrators of lawless violence against formerly enslaved people were almost never held accountable—instead, they were often celebrated. Emboldened Confederate veterans and former enslavers organized a reign of terror that effectively nullified constitutional amendments designed to provide Black people with equal protection and the right to vote.
Congress passed the Ku Klux Klan Act of 1871 “to provide a remedy for the wrongs being perpetrated” on Black Americans during this era of terror. The statute “imposes liability upon any person who, acting under color of state law, deprives another of a federal right”—and it does so by “interpos[ing] the federal courts between the States and the people, as guardians of the people’s federal rights.”
The Ku Klux Klan Act, the court writes, established a new legal system in which federal courts were to enforce federal constitutional rights against state officials through civil remedies and criminal sanctions. The Supreme Court made clear at the outset that there was no “good-faith” exception, holding in 1882:
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.
But then police officers wrongly arrested ministers who peacefully entered a “White Only” bus station waiting room in Jackson, Mississippi—instead of protecting them from the menacing crowd that was threatening violence—and the ministers sued the officers in federal court for violating their constitutional rights under the Ku Klux Klan Act.
The Supreme Court invented “qualified immunity” in its 1967 decision in the case, holding that the police could be exempted from the Ku Klux Klan Act by claiming they acted in good faith, even though no good-faith defense, much less general immunity, had previously been permitted. As the district court put it:
The Justices took a law meant to protect freed people exercising their federal rights in Southern states after the Civil War, then flipped its meaning. In creating qualified immunity, the high Court protected the Southern officials still violating those federal rights 100 years after the War ended.
“Impossible to Overcome”
Since the 1960s, the Court has made qualified immunity “almost impossible to overcome,” by imposing and expanding unusual requirements, like the “clearly established” rule that requires the person suing to identify a prior court case that had already deemed similar police actions to be illegal.
The district court provided multiple examples of how the lack of a similar-enough prior decision can defeat a federal civil rights claim, noting that under the “clearly established” requirement:
- Courts let correctional officers hold a person for six days in a frigid cell, covered in other persons’ feces and forced to sleep naked in sewage, because it was only clearly estab- lished “that prisoners couldn’t be housed in cells teeming with human waste for months on end.”
- Courts let correctional officers spray some chemical agent in a person’s face “for no rea- son at all,” because it was only clearly established that guards could not use “the full can of spray.”
- Courts let police officers who were inside a car kill a person who didn’t warrant lethal force. The law clearly established only that an officer could not shoot a person from outside a car.
- And a court let a deputy sheriff shoot a 10- year-old child (from 18 inches away) while the deputy repeatedly tried to shoot a nonthreatening family dog. No prior decision “clearly established” that act as unconstitutional.
“A Perpetuation of Racial Inequality”
In addition to keeping victims from obtaining—or even seeking—damages for egregious misconduct, “another obvious consequence of qualified immunity,” the court wrote, “is a perpetuation of racial inequality.”
“Research indicates that Black Americans are pulled over more often, searched more often, arrested more often, imprisoned more often, wrongfully convicted more often, and killed by law enforcement more often than other Americans,” the court wrote, citing extensive research in support.
Qualified immunity then “shut[s] the courthouse doors on a large portion of those black and brown citizens who plausibly allege that police officers targeted, surveilled, or stopped them because of their race.”
“A Deep Distrust of Ordinary People”
The court incisively summarizes several compelling critiques of qualified immunity. Not only does the doctrine fail to appear in the text of the Ku Klux Klan Act or any other statute or Constitutional provision, but new research suggests that Congress explicitly prohibited common law defenses in the text of the Ku Klux Klan Act, but that text was mistakenly omitted from the first compilation of federal law in 1974.
Qualified immunity is established Supreme Court precedent, and reliance on precedent is important, but the court points out that the Supreme Court’s reasoning in overturning 50 years of precedent in Dobbs v. Jackson Women’s Health Org. applies even more strongly to qualified immunity, namely that the Supreme Court had “short-circuited the democratic process” and used “raw judicial power” to dictate rights that should be—or in the case of qualified immunity, already had been—decided through the democratic process.
Turning to the Supreme Court’s own policy-based justifications, the district court points out that little to no evidence supports the Court’s assumption that qualified immunity is needed to protect government officials (but not hospitals, banks, utilities, or any other industry) from the costs and distractions of litigation.
And it points out the troubling inconsistency between a criminal case—wherein the government can convict and imprison you even if no one had ever committed the crime in exactly the same way before—and qualified immunity, which allows government agents to violate your constitutional rights “as long as they do so in a novel way.”
The two cannot coexist honestly, the court writes. “It cannot be true that in America, it is easier to take away one’s liberty than hold the government accountable for violating the very Constitution guaranteeing that liberty.”
The court concludes with the powerful observation that qualified immunity, at its core, is undemocratic. The People’s power is exercised in the judicial branch not through elections but through jury service. Instead of letting juries determine facts and consequences as they do in all other cases, qualified immunity lets judges end cases before victims are even allowed to pursue or present evidence.
“This area of the law reflects a deep distrust of ordinary people,” the court writes, and “has too often deprived the People of their proper role in deciding constitutional torts brought under the Ku Klux Klan Act.”