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Federal Judge Criticizes Qualified Immunity and Challenges SCOTUS to Abolish It

In a recent decision dismissing a defendant’s lawsuit against a police officer on the basis of qualified immunity, Judge Carlton Reeves of Mississippi filed a 72-page opinion that challenges the morality of the doctrine of qualified immunity, provides an in-depth history of the doctrine, and concludes with a challenge to the U.S. Supreme Court to abolish it.

Clarence Jamison was driving to his home in South Carolina after vacationing in Arizona, where he had purchased a Mercedes convertible. On July 29, 2013, as Jamison was passing through Pelahatchie, Mississippi, Officer Nick McClendon noticed a “Black man driving a Mercedes” and decided to pull him over. At trial, McClendon claimed the temporary tag was bent and the license number was obscured, but during the stop he told Jamison that police had received a tip that the Mercedes was stolen and contained 10 kilos of cocaine. Nearly two hours later, after McClendon had caused about $4,000 worth of damage to the vehicle while searching it and had inspected it with a drug dog, he let Jamison go on his way.

“Thankfully, Jamison left the stop with his life,” Reeves said in his opinion. “Too many others have not.”

Jamison filed a lawsuit against McClendon under 42 U.S.C. § 1983. Because of the doctrine of qualified immunity, the case turned on whether it was “clearly established” that what McClendon did violated Jamison’s Fourth Amendment rights. Because Reeves could not point to a prior case that contained the “precise offensive conduct,” McClendon prevailed on qualified immunity.

Reeves’ opinion discussed how § 1983 had its roots as part of the Ku Klux Act of 1871 and was designed to protect newly freed Blacks and their White allies from persecution and retaliation by the Klan and their racist supporters in government and law enforcement.

Qualified immunity is the result of decades of jurisprudence where the Supreme Court has slowly but steadily neutralized the remedies available under § 1983. Qualified immunity “now protects all officers, no matter how egregious their conduct, if the law they broke was not ‘clearly established,’” said Reeves. It applies “to all but the plainly incompetent or those who knowingly violate the law.”

However, Reeves laid out that, just as the Supreme Court created qualified immunity, it could abolish it as well. The Court did something similar when it sanctioned “separate but equal,” which it later abolished in Brown v. Board of Education.

Various legislative initiatives also seek to modify or abolish qualified immunity, depending on how “progressive” the prospective bill’s authors are. A U.S. Senate bill that would disallow immunity even if the offensive conduct is not “exactly” like prior violative conduct ended in committee. A U.S. House bill would remove immunity for officers after they have been found to have violated a citizen’s rights previously and were then “decertified” by a national board. But these legislative efforts fall far short of abolishing qualified immunity in the country’s highest court.

“Judges have invented a legal doctrine to protect law enforcement officers from having to face consequences for wrongdoing,” wrote Reeves. “And the harm in this case to one man sheds light on the harm done to the nation by their manufactured doctrine.” 



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