Time for qualified immunity to go

August 28, 2020 12:01 am

Capitol Police stand along Main Street during the “Reopen Virginia Rally” in Richmond, Va., April 22, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)

A federal judge’s impassioned comments about police overreach provide powerful evidence for Virginia legislators who want to weaken something called “qualified immunity.” The legal doctrine makes it nearly impossible for citizens to win certain civil suits claiming wrongdoing by police officers — often in excessive force incidents. 

Here’s how the libertarian Cato Institute, which has been campaigning to abolish qualified immunity, defines it: 

The doctrine shields state officials, including police officers, from liability when they violate people’s constitutional rights. Developed by the U.S. Supreme Court in the late 1960s, the doctrine says such defendants can’t be sued unless they violated “clearly established law.” Another court in a plaintiff’s area of the country, then, would’ve had to rule on a case just like theirs and judged the action illegal.

So in practice, it can be very difficult to get a fair hearing — even in instances where most laypeople think officers should be held liable for their actions.

Legislation sponsored by Del. Jeffrey Bourne, a Richmond Democrat, passed the House Courts of Justice Committee this week during the General Assembly’s special session. (Possible changes to police procedures are among the major topics in Richmond.) 

The bill “brings a greater level of accountability” to law enforcement agencies, Bourne told me before the committee meeting.

Senators, though, tabled a similar bill in the Judiciary Committee and sent it for study by a conference of the Virginia Bar Association. That means this extremely pro-law enforcement doctrine could survive.

It shouldn’t.

That brings me back to U.S. District Judge Carlton Reeves of Mississippi, whom I alluded to at the start of this column. If you haven’t read his 72-page opinion this month in a case stemming from a police stop by a White Mississippi police officer, I urge you to do so. 

It may open your eyes about what Black and Brown people often deal with in just trying to live.

The opinion is a blistering takedown of what Reeves, who is Black, says is a system that usually gives carte blanche to police officers who are often fishing for drugs and guns; profiling suspects by race; or running roughshod over the rights of citizens – many of whom are guilty of nothing. 

Clarence Jamison, who’s Black, was driving a Mercedes convertible home to South Carolina from a vacation in Arizona in 2013. That’s when he was stopped by Officer Nick McClendon — allegedly because Jamison’s temporary tag was folded over. 

The motorist was subjected to nearly two hours “of an armed police officer badgering him, pressuring him, lying to him and then searching his car top-to-bottom for drugs,” the judge wrote.

“Nothing was found. Jamison isn’t a drug courier. He’s a welder.

“Unsatisfied, the officer then brought out a canine to sniff the car,” Reeves continued. “The dog found nothing.”

Reeves ultimately ruled that Officer McClendon – who lied and told Jamison he’d received a call that 10 kilos of cocaine were in the car – was indeed protected by qualified immunity. But the judge wasn’t finished.

“Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise,” he said. “Countless more have suffered from other forms of abuse and misconduct by police. Qualified immunity has served as a shield for these officers, protecting them from accountability. …

“Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine,” Reeves said, adding the Supreme Court should toss this legal shield into “the dustbin of history.”

He’s far from the only jurist, law professor or organization to think that way.

Ending the doctrine has united groups with disparate ideological viewpoints, including Americans for Prosperity, the American Civil Liberties Union, the Law Enforcement Action Partnership and the Institute for Justice. 

The Cato Institute, in fact, compiled several examples where qualified immunity protected officers in some truly outrageous incidents. 

The cases include Baxter v. Bracey, in which two officers in metro Nashville, Tenn., sicced a police dog on a suspect who had surrendered and was sitting on the ground with his hands up; and Jessop v. City of Fresno, Calif., where an appellate court gave a pass to police officers who stole more than $225,000 in cash and rare coins while executing a search warrant. 

That’s some rainy day fund.

Some police groups say the doctrine is vital, and abolishing it could hinder recruitment and retention – though that’s debatable. Wayne Huggins, executive director of the Virginia State Police Association, told the House Courts of Justice panel it also would lead to additional frivolous lawsuits. 

His was a minority view among public speakers, however, at Wednesday’s meeting. Ashna Khanna, legislative director of the ACLU of Virginia, told the panel the doctrine has become essentially a “free pass” for officers who violate constitutional rights.

She’s right. Qualified immunity should’ve never morphed into “blanket immunity.” It’s time for the pendulum to swing back in favor of people seeking their day in court.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Roger Chesley
Roger Chesley

Longtime columnist and editorial writer Roger Chesley worked at the (Newport News) Daily Press and The (Norfolk) Virginian-Pilot from 1997 through 2018. He previously worked at newspapers in Cherry Hill, N.J., and Detroit. Reach him at [email protected]