Judge: Qualified Immunity Is an Unqualified Disaster: The police-protecting doctrine is legally baseless, costly, and liberty-eroding. (CLARK NEILY, MAY 28, 2024, The Bulwark)
As Judge Reeves explains in his May 20 opinion denying qualified immunity to a Jackson, Mississippi detective who helped frame an innocent man for murder, there are so many problems with that doctrine that it’s hard to know where to start.
First and most fundamentally, the judiciary’s job is to apply law, not make it. And yet, in a blatant act of judicial policymaking, the U.S. Supreme Court read into the nation’s premier civil rights law, 42 U.S.C. §1983, the defense of qualified immunity despite the fact that the statute itself makes no mention of any immunities whatsoever. Judge Reeves notes how absurd it is to suppose that the 1871 law, which was designed to protect newly freed African Americans in particular from the predations of badge-wearing Klansmen and other tyrannical government officials, would have included a defense so broad as to entirely defeat the law’s unambiguous purpose. It makes no sense.
Second, Judge Reeves notes 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 blazing 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 not to be locked up “in a frigid cell, covered in other persons’ feces and forced to sleep naked in sewage” for six days because the only case on point held that “prisoners couldn’t be housed in cells teeming with human waste for months on end.” (The latter case was so obviously wrong that the Supreme Court summarily reversed without briefing or argument.) Another practical consequence according to Judge Reeves is the perpetuation of racial inequality. He notes that black Americans are more frequently subjected to stops, searches, arrests, and lethal force than other Americans, and “qualified immunity then bars many of these individuals from securing justice” when their rights are violated.
It’s activism when the Right ignores Originalism too.