For me the murder of George Floyd was a threshold event in many ways. Here I would like to take a look at one of those issues, this whole business of qualified immunity for Police Officers. One of the questions I find popping up in my thoughts a lot these days is how our society survived from the time of our Nation’s birth until qualified immunity became a reality or, in other words, what led up to adoption of qualified immunity for Police Officers?
As we hear the conversations of today, we rarely hear anything about where it all began and why it was considered necessary, but the origins are found in the mid-1860s following the Civil War and during the time of Reconstruction. Our history books were not and still are not complete with a recounting of events relating to the acceptance of the newly freed slaves as equal American Citizens. The 13th, 14th, and 15th Amendments to our United States Constitution were supposed to accomplish that task, but they proved to be inadequate. The failure of these three Amendments to accomplish their intended goals was in no small part due to white supremacist group that would be known as the Ku Klux Klan or KKK for short. Quoting from the KKK page in Wikipedia:
“The first Klan was established in the wake of the Civil War and was a defining organization of the Reconstruction era. Organized entirely in the Southern United States, it was suppressed through federal intervention in the early 1870s. It sought to overthrow the Republican state governments in the South, especially by using voter intimidation and targeted violence against African-American leaders. Each chapter was autonomous and highly secret as to membership and plans. Its numerous chapters across the South were suppressed around 1871, through federal law enforcement.”
Throughout the South there were efforts to suppress the voting rights of the new African American Citizens and the Federal Government was having a difficult time enforcing the provisions of the 14th Amendment guaranteeing those rights. President Ulysses S. Grant asked the Legislature to authorize a suspension of Habeas Corpus in certain circumstances relating to this enforcement.
The Legislature granted the President’s request by passing what came to be known as the Civil Rights Act of 1871”, “The Ku Klux Klan Act” or by its actual name, “an Act to enforce the rights of citizens of the United States to vote in the several states of this union”. In the first section of this bill, we find a couple of very significant sentences, as follows:
“Be it enacted by The United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial laws of the United States which are in their nature applicable in such cases.”
When we boil that down just a bit, it is telling us that we all have the right to seek redress for any infringement of our Civil Rights without regard to who may have infringed our rights or why. These new provisions in the law created some controversy for judges, and a few other judicial officials. Did the courts actually mean that anybody could be sued? It turns out that the Civil Rights Act of 1871 wasn’t enforced as strictly as it might have been so the question of immunity for judges and a few others seems to have just continued to be practiced.
Finally, in 1961, a group of clergy tried to enter the lunch room of the Jackson, MS bus station. Their entry was denied by two police officers and that action led to the filing of a Civil Rights case under the Civil Rights Act of 1871. By 1967 the case had found its way before the United States Supreme Court and it was part of the Court’s Opinion in that case that became the origin of qualified immunity for police officers. The following two paragraphs from Wikipedia summarize the relevant portion of that ruling:
“Eight of the nine justices agreed with the Fifth Circuit that Judge Spencer had absolute immunity from liability for damages, and that Section 1983 would not apply in a judge’s case, stating that “the immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” This principle of immunity of judges from liability for damages was established in common law as found in the case Bradley v. Fisher (1872).
“They went on to state that although police officers are not granted absolute and unqualified immunity from liability for damages, they may be excused “from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied”, similar to the principle that a police officer “… who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.””
So there we have it. The United States Supreme Court is the source of Qualified Immunity for police officers as we now know it. To my mind, our Legislature should have been the origin of these legal provisions in our laws. By the vernacular of today the actions of the Supreme Court Justices would place them in the category of activist judges.
To complicate the matter, the original implication of qualified immunity seems to have been much narrower in its usage. Today we find police officers committing, in my opinion, actual felonies in the course of their work. Sometimes their conduct is so egregious that I ask myself is it ever appropriate to break the law in order to catch a law breaker? My initial reaction is that it is not, but I haven’t finished my thinking on the topic.
Be that as it may we are where we are and it will now take Legislative action to clear the matter up. When activist judges establish laws, they typically don’t leave us a lot of references as to how they arrived at their conclusion so the Legislators must spend some quality research time in the library before they start drafting the new law.
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