Carte Blanche: What is Qualified Immunity?
Jacob Morch/UNSPLASH
After the conclusion of the Civil War, the newly reunited Union imposed Reconstruction on the states of the former Confederate South. Reconstruction was not only a structural and physical rebuild of the war-ravaged South, but it was an attempt at reconstructing the racist structure of the South by federally imposed authority.
Racism and regional accountability were and are still a perpetual issue in American politics due to the representative federal republic we reside within. Localized authority gives citizens the freedom to govern themselves without constant overbearing authority from a distant central government. As a means of “practical functionality” qualified immunity shields government officials from civil suits if they are functioning under the color of the law. It does not eliminate criminal prosecution, but it does shield them from civil damages if it can’t be proven that they violated protected, constitutional rights.
Why do I bring up Reconstruction and the Civil War when we have protests filling the streets and politicians calling for an end to qualified immunity? Well, because this era of American history that originally sought to hold officials accountable has dwindled in its authority due to certain modern legal decisions.
The end of the Civil brought about three amendments: the 13th amendment ended slavery unless duly convicted as a criminal, the 14th amendment ensure equal protection and due process, and the 15th deemed it illegal to deny voting rights based on race, color or previous status of servitude. While these are three of the most important amendments for civil rights and liberties, besides the 19th and the Bill of Rights, they were some of the most staunchly opposed laws in American history.
The Reconstructionist agenda had been shaped by many individuals within Congress as a means of punishing the South for their betrayal of the Union and fully subjugating any possible dissent within the region. In response to civil rights legislation and military subjugation, vigilante groups wreaked havoc on blacks in order to prevent them from exercising their newly protected constitutional rights, the most famous among them being the Ku Klux Klan.
In response to the violence, Congress passed the enforcement acts with the Third Enforcement Act enabling the federal government to punish Klan members who would deny blacks equal protections under the law. This law, also known as the Civil Rights Act of 1871 or more specifically Section 1983, enabled citizens to seek damages from government actors, who had denied their constitutional protections, by seeking relief in federal districts or circuit courts.
Over the years, the Supreme Court had watered down this right to seek damages against government agents since the Court deemed the equal protections to seek damages as a means of protecting blacks against the KKK during Reconstruction. Possibly the most significant resurrection of the Civil Rights Act of 1871 was the case of Monroe v Pape; the facts of the case involved officers breaking into the residence of James Monroe, stripping him and his wife naked, searching their residence and ultimately taking him in for questioning.
By the way, the officers did this all without a warrant. Monroe brought a civil suit against the officers under the law of the Civil Rights Acts and had the case dismissed twice and then was appealed to the Supreme Court. The court decision stated that individuals could be held legally liable acting under the color of the law, however, municipalities were not legally liable. While this did not infringe on civil action against actors, it started momentum in court decisions for defining more finite parameters around the accountability of government actors.
The ultimate reconfiguration of immunity in the U.S. resulted from the decision of the Supreme Court case of Harlow vs. Fitzgerald. The majority opinion written by Justice Lewis Powell claims that government officials were protected by qualified immunity in order to promote the functionality of the government. This immunity could only be overcome showing that the defendant’s conduct, “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”
Furthermore, a “clearly established” law must be derived from a standing judicial decision under similar circumstances. So, in order for any kind of precedent to be set, a litigator would have to look back to any standing court decision with situations the exact same in order to establish a right violated, not to mention it would come out of thin air.
Let me be clear, I understand why the Supreme Court would want to shield officials from civil liability so that they can be unhindered in performing their duties and to prevent a backlog of civil cases ranging the gamut of potential complaints. That being said, creating a legal precedent that essentially negates our 4th, 5th and/or 14th amendment rights is a legal doctrine that deserves to be revisited due to the present circumstances.
On June 4th, House Reps. Ayanna Pressley and Justin Amash introduced a bill that would attempt to stifle qualified immunity in order to increase police accountability. The bill seems to have some bipartisan support considering Pressley is a progressive Dem and Amash, a former Republican, is a member of the Libertarian Party.
Pressely issued a statement to the press saying, “There can be no justice without healing and accountability, and there can be no true accountability with qualified immunity. It’s past time to end qualified immunity, and that’s exactly what this bill does.”
This is at least a step in the right direction, however, states across the nation have varied immunity laws specific to their communities that would not completely fix the problem. Furthermore, we as citizens should hope for our civil leaders to be just that: leaders. Leaders are not exempted from the rules, however, they must promote exemplary performance under the law. Operational convenience should not negate the liberties and rights of the citizens they are accountable to.
This all being said, the state could do a better job of protecting constitutional rights by avoiding their limitation in the first place. The War on Drugs has perpetuated a prohibition on substances without so much as an amendment to justify the mass incarceration and immense amount of money spent for the sake of curtailing the drug trade. Prohibition started under the 18th amendment, so we deserve an amendment to justify the restriction on individual liberties that has allowed many to be thrown in prison for offenses that were non-violent.
Ending qualified immunity won’t be the magical resolution to police and criminal justice reform, and it might create some new problems along the way. However, just because an individual works for the state does not mean they are not subjected to rules of said state.
