The Scary History of Qualified Immunity

In this Op-Ed, Allen Thomas explains The Scary History of Qualified Immunity. It’s not what you think. In theory Allen notes that qualified immunity sounds like a good idea; however, as Allen tugged on the string of its past, Allen became horrified regarding principled ignorance on the issue. You’ll be surprised at what Allen unveils.

As the events unfolded regarding George Floyd, I felt a sick feeling enter my stomach.  How could anyone feel comfortable kneeling on the neck of a man who was handcuffed, on the ground AND with a group of people filming?  How can that force be legal in the America I love?  Could that be the fate of my unborn son? Or even me?  If I was in that crowd, would I have had the courage to take the police officer off of that man’s neck and if I did, would that unlawful force then be turned against me?

As I struggled with all of these questions and searched for answers, I immediately heard the right do what they do best: defend the good police officers, speak out against the protesters and defend against systemic racism.  But not one solid solution came out regarding why this man was allowed to use such brazen force and feel pure confidence doing it.  If I did that as a common citizen, I would be in jail. The safety net that officer had is protection from civil court in the form of qualified immunity.

Qualified Immunity sounds like a good idea in theory but as I tugged on the string of its past, the more I became horrified about my principled ignorance on the issue.  Qualified immunity has its philosophical origin in Sovereign Immunity.  Our Nation fought a war against the premise of sovereign immunity: that the King can do no wrong because they have the will of God behind their actions.  Qualified Immunity has its roots in this principle as well: a government actor needs to be protected from citizens because they can do no wrong.  Police officers were already protected by their good faith actions and would continue to be protected if qualified immunity were abolished. Qualified immunity instead only protects a citizen’s “clearly established constitutional rights.”

This is concerning because, according to the courts, my simple view of a constitutional right as Life, Liberty, and the Pursuit of Happiness is mundane and antiquated.  A clearly established constitutional right has to have a previously decided case that involved the same “particular conduct and specific context.”  This should scare everyone because if there is not a court case that has sufficiently similar facts to yours, then the case is tossed.  Or succinctly, with changing times and technology, the first person to litigate a specific harm done won’t have a clearly established constitutional right and any similar abuses will thus be protected by the courts.  Is this really about protecting good police officers?

The final nail in the coffin was the beginning of qualified immunity within the American court system.  The necessary legislation known as the Civil Rights Act of 1871 (or the Klu Klux Klan Act) allowed citizens to hold all government actors liable within civil court for constitutional rights violations.  If force was used unlawfully or a constitutional right was violated, then citizens were allowed to be made whole through the civil courts.  But an activist Supreme Court in 1967 decided to invented qualified immunity.  Without any legislation, deliberation, or approval from the executive branch, the Supreme Court changed the landscape of actions the government could use against you and your lack of ability to take action against them.  Qualified Immunity tosses out the case before it even gets to court, before you can even make a case in front of jurors, before you can even ask for justice.

We can argue about whether it is systemic racism or the racist nature of the court system.  Or we could agree the system is broken and qualified immunity is just one of the issues that needs and has needed to be fixed.  Qualified immunity is the legal use of force and has vilified what should be an honorable and brave profession by not allowing the dishonorable to be held accountable. Qualified Immunity has no place in our legal courts and Congress needs to fix the wrong done by the overactive judicial branch.  Americans deserve better than to have legalized force used against them.

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