Six years after the end of the Civil War, with the recalcitrant South still under the boot of Reconstruction, Congress passed the Civil Rights Act of 1871, designed to provide a mechanism to enforce the constitutional protections the 14th Amendment — ratified just three years earlier — provided to formerly enslaved African Americans.
Technically, the Civil Rights Act comprised the first section of the Ku Klux Klan Act, which, as the name suggests, targeted the white supremacist terrorist group. Perhaps because the Klan intermingled with the South’s white power structure, the bill’s language was expansive.
It read: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
In other words, if a government official deprives you of your rights, you can sue.
This act became Section 1983 of Title 42 of the U.S. Code. For the first 90 years of its existence, it was relatively rarely used. As the Civil Rights Movement grew, however, it became a more popular tool.
In the early 1960s, the Supreme Court ruled that local (but not state) governments could be sued for the acts of their employees if a violation of rights occurred under the “color of law.”
But then came 1967’s Pierson v. Ray decision, when, to shield racist Mississippi cops from the consequences of arresting civil rights protesters, the court invented qualified immunity.
In 1961, Mississippi cops arrested “a group of white and Negro clergymen” who were praying in the waiting room of a segregated bus terminal. The police said they were violating an anti-loitering statute that, four years later, the Supreme Court held was unconstitutional. The court reasoned that because police sued in Mississippi over for making false arrests could claim that they acted in good faith and had probable cause, they should be afforded the same privilege in Section 1983 lawsuits.
The court said qualified immunity didn’t just cover the cops’ good faith that they had probable cause for the arrest, but the their belief that the law they were enforcing was constitutional. The ruling made sense: How could cops be expected to know what the courts would rule unconstitutional later?
The court didn’t end there, however. Instead, it vastly expanded qualified immunity over the next two decades. In 1982, the court ruled that no longer did defendants have to “sincerely” believe they were acting legally to receive qualified immunity. Rather, it would apply automatically whenever “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
The words “clearly established” do a lot of work, especially in cases in which police are accused of violating someone’s civil rights. In short, that’s because lower courts usually require a prior ruling on a nearly identical set of facts from the same jurisdiction. This has led to several absurd outcomes.
In one, for instance, a Nashville cop who released his dog to attack a homeless man who was seated with his hands in the air was granted qualified immunity because the court ruled that in a previous case, the person who was unlawfully attacked by a police dog was lying on the ground, not sitting with his hands up.
Anyone who has covered cops or courts long enough has law enforcement seek qualified immunity for something similarly outrageous.
They do so before juries hear the facts of a case, and judges can award it without bothering to determine that the plaintiff’s rights were violated. They can (and often do) skip right to the “clearly established” bit, and nothing else matters. Which means that additional violations stop being “clearly established.”
And on the rare occasions when cops lose a qualified immunity argument at the summary judgment phase, they can appeal immediately, meaning that plaintiffs not only must win twice in court before even making their case to a jury, but the best-case scenario is a long delay in seeking justice.
The result: As Justice Sonia Sotomayor put it in 2018: Qualified immunity has become “an absolute shield for law enforcement officers.”
I’m bringing this up, of course, in the context of the killing of Tyre Nichols by five members of the Memphis Police Department, a crime so brutal and caught so vividly on camera that the cops are — unlike God knows how many similar but unrecorded events in years past — facing murder charges.
Like after the videotaped murder of George Floyd in 2020, Nichols’ murder has prompted another round of calls for police reform. And like after the murder of George Floyd, and the protests that followed, few of them will amount to much.
In 2021, the Democratic House passed the George Floyd Justice in Policing Act, which among other things limited qualified immunity for bad cops. It failed in the Senate. The Republicans who now control the House have already shrugged off doing anything. Rep. Jim Jordan of Ohio told Meet the Press, “I don’t know that there’s any law that can stop that evil that we saw.”
Maybe. But incidents like what happened to Nichols and Floyd happen because cultures of unaccountability permeate police stations all over the country. And the longer outrages don’t get a response, the more that trust will erode between law enforcement and the communities they police.
Ending the made-up doctrine qualified immunity is low-hanging fruit. It won’t stop every horrific act of police brutality, or even most of them. But in lieu of meaningful reforms to policing, it might at least offer cops’ victims an opportunity for compensation.
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