Qualified Immunity Is an Unqualified Disaster

 

District court judges occupy the bottom rung of the federal judicial hierarchy. They hold hearings, decide motions, and preside over trials. They do not make precedent; they apply it. It is therefore highly unusual for district court judges to publicly criticize appellate‐​court decisions they are bound to apply, much less rulings of the Supreme Court. But that’s precisely what happened last week when Mississippi Judge Carlton Reeves called for the eradication of qualified immunity.

In a nutshell, qualified immunity is a legal defense that police and other government officials can assert in civil rights cases to defeat otherwise meritorious claims by arguing that it was not yet “clearly established” that the particular thing they did—whether shooting a fleeing suspect in the back or stealing $225,000 worth of cash and rare coins while executing a search warrant—was unconstitutional

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...more