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Desmond Green spent nearly two years in a violent Mississippi jail awaiting trial for a murder he did not commit. The sole evidence connecting him to the crime was the statement of another man — Samuel Jennings — who later admitted he lied to get himself out of jail.
When Jennings came clean, he also claimed that the detective he’d spoken to about the murder had encouraged him to select Green’s photo from a lineup after Jennings had first pointed at someone else.
After his release, Green sued the detective, alleging that the arrest violated his constitutional rights against unreasonable seizure and deprivation of liberty. The detective sought to have the suit dismissed, citing qualified immunity: a legal doctrine that shields government officials performing their work duties — often police — from civil lawsuits accusing them of violating a person’s constitutional rights.
In a ruling this week, U.S. District Judge Carlton Reeves not only rejected the detective’s qualified immunity claim, but took a rhetorical flamethrower to the entire doctrine as “an unconstitutional error” and “unsupportable as a matter of history, text, and policy.”
Qualified immunity has come under increased public scrutiny over the past decade, with critics calling it a direct impediment to police accountability. The doctrine has also become a stand-in for the broader legal and cultural norms that allow police to act with impunity in many instances, including in wrongful arrests, erroneous police raids and excessive force cases.
In 2021, my colleague Beth Schwartzapfel wrote that courts appear to be slowly shifting their thinking on the doctrine. Clark Neily, a policy scholar with the libertarian Cato Institute think tank, argued last week that indeed, “judicial enthusiasm for qualified immunity is starting to wane.” Neily pointed to a recent decision by a panel of judges on the federal Fifth Circuit — traditionally one of the country’s most conservative appeals courts.
The appellate judges not only denied a qualified immunity claim filed by two police officers in Houston, they did so with a conspicuous amount of snark. “For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up,” the decision begins.
Unlike Reeves, the Fifth Circuit panel did not make a philosophical critique of qualified immunity. Rather, they concluded the officers’ conduct was wrong in “clearly established” ways. Judge Andrew Oldham, a Donald Trump appointee, explained it in a footnote: “It involves a simple, clearly established rule that all officers should know at all times,” he wrote. “Do not lie.”
The notion of “clearly established” law is central to qualified immunity. It essentially demands that government officials receive immunity unless a previous court case has already found the same conduct to be unconstitutional. Courts have frequently interpreted this aspect of qualified immunity with incredible specificity, for example concluding that officers who stole nearly a quarter-million dollars of cash and property “did not have clear notice that it violated the Fourth Amendment” prohibition on unreasonable seizure.
Judge Don Willett, another Fifth Circuit judge and Trump appointee, has frequently criticized the doctrine down to its core, specifically the “clearly established” rule. In a dissent earlier this year involving the arrest of a Texas journalist, Willet wrote: “In the upside-down world of qualified immunity, everyday citizens are demanded to know the law’s every jot and tittle, but those charged with enforcing the law are only expected to know the ‘clearly established’ ones. Turns out, ignorance of the law is an excuse — for government officials.”
Typically, discussions of qualified immunity refer to the ability to file a civil claim in federal court under a legal provision that makes it illegal to deprive someone of their rights “under the color of law.” That’s because historically, victims of police violence had their best chance of a fair hearing from the federal courts, rather than the state and local courts, which are much closer to the officials they were seeking to challenge.
But while some judges may be poking at the foundations of qualified immunity at this level, a handful of legislators have recently sought to expand similar protections beyond the federal system and law enforcement contexts. Last month, Iowa Gov. Kim Reynolds signed a bill extending immunity protection to armed teachers and school staff, who are now eligible to carry firearms on school grounds. In Louisiana, a recent law offers a new kind of qualified immunity to private gun owners who use a firearm in an apparent act of self-defense.
And on the 2024 campaign trail, Trump has promised to create a new protection for police if elected to a second term, repeatedly saying he’ll grant police “immunity from prosecution.” While the president has no power to stop local prosecutors or state attorneys general from pressing charges on police, he could pressure the Department of Justice to not pursue federal charges against officers.
