Qualified Immunity

Another Rogue Cop Just Got Qualified Immunity. The Judge Who Gave It to Him Isn't Happy About It.

"The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement," wrote Judge Carlton W. Reeves.

|

A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.

"The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement," wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. "Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called 'qualified immunity.' In real life it operates like absolute immunity."

But there's a catch: Reeves bemoaned the doctrine of qualified immunity in an opinion granting it to a police officer.

The case involves Richland Police Department Officer Nick McClendon who pulled over Clarence Jamison in Pelahatchie, Mississippi, to conduct a drug search that turned up no contraband but damaged Jamison's car in the process. McClendon allegedly sought consent for the search five times and lied to Jamison about why he needed to do so, telling the man he'd received a "phone call [about] 10 kilos of cocaine" in Jamison's vehicle. McClendon had received no such call, and he found no drugs. But he did deploy a canine and upended Jamison's Mercedes during the search, which lasted an hour and 50 minutes. When Jamison asked why he'd been stopped in the first place, McClendon replied that it was because his temporary cardboard license plate on his newly purchased vehicle, issued by the dealer, was "folded up," likely due to wind. The vehicle damages were appraised at $4,000.

Jamison brought three claims against McClendon: a Fourth Amendment claim for "falsely stopping him, searching his car, and detaining him"; a 14th Amendment claim for using "race as a motivating factor in the decision to stop him, search his car, and detain him"; and another Fourth Amendment claim for "recklessly and deliberately causing significant damage to Mr. Jamison's car by conducting an unlawful search of the car in an objectively unreasonable manner amounting to an unlawful seizure of his property."

But to overcome qualified immunity, a plaintiff must show that the defendant's misconduct had been "clearly established" by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official's misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. "This Court is required to apply the law as stated by the Supreme Court," Reeves writes. "Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer's motion seeking as much is therefore granted."

It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)

A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff's deputy who shot a 10-year-old boy while aiming at the child's non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and "massive amounts" of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.

In its opinion granting qualified immunity to Michael Gutierrez, the Los Angeles Police Department officer who shot a 15-year-old boy who was on his way to school, the Court of Appeals for the Ninth Circuit wrote that "a rational finder of fact" could determine that Gutierrez's excessive force "shocked the conscience and was unconstitutional under the Fourteenth Amendment." He still received qualified immunity: "The panel held that because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim," the 9th Circuit concluded.

The same court offered a similar explanation when it denied plaintiffs in Fresno, California, the right to sue two police officers who took $225,000 from them. The police officers "ought to have recognized that the alleged theft was morally wrong," the 9th Circuit wrote, but they "did not have clear notice that it violated the Fourth Amendment."

Reeves does not appear convinced by the pretzel logic of qualified immunity. The doctrine's sordid history "makes clear that the Court has dispensed with any pretense of balancing competing values," he wrote. Rogue civil servants who have little regard for the rights of those they swear to protect and serve are bound to come out on top except in the rare circumstances where their malfeasance perfectly mirrors a precedent. 

There have been several proposals to reform qualified immunity over the last couple of months, though it appears the theatre that is congressional politics will render them dead on arrival. Rep. Justin Amash (L–Mich.) introduced a bill to abolish it completely; it was co-sponsored by Rep. Ayanna Pressley (D–Mass.) with several other Democrats and one Republican. Though the GOP has been resistant to any changes to qualified immunity, Sen. Mike Braun (R–IN) introduced legislation that has similarly gone nowhere.

The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.  

"I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society," Reeves writes. "Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of 'separate but equal,' so too should it eliminate the doctrine of qualified immunity."

Advertisement

NEXT: Back-to-School Shopping in a Pandemic

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So tell me judge, how does a case get to the supreme court if you refuse to render a fair verdict instead of bending over?
    Find the son of a bitch guilty, and rule qualified immunity is unconstitutional. See if the supremes refuse to hear that one.

    1. They refuse to defend the Heller and McDonald decisions already, lower courts have been shitting all over those decisions for years and there’s been hardly a peep out of the SC about it.

      If you’re a lower court, might as well try your luck. The SC has already demonstrated that they don’t want their decisions to be taken seriously.

      1. They’ve learned that so long as lower courts defer to anything that even smells like precedent, they can pocket affirm bad decisions by not hearing them. Roberts is far more interested in appearing non-political than actually administering justice or the law (even if he has to be political to do so) , so the whole system is screwed until something changes.

        1. ●US Dollar Rain Earns upto $550 to $750 per day by google fantastic job oppertunity provide for our community pepoles who,s already using facebook to earn money 85000$ every month and more through facebook and google new project to create money at home withen few hours.cdc..Everybody can get this job now and start earning online by just open this link and then go through

          instructions to get started……….==►► Money90

      2. ●US Dollar Rain Earns upto $550 to $750 per day by google fantastic job oppertunity provide for our community pepoles who,s already using facebook to earn money 85000$ every month and more through facebook and google new project to create money at home withen few hours.Everybody can get this job now and start earning online by just open this link and then go through instructions to get started………. Click For Full Details.

    2. this. why are you a judge if not this?

      1. I make up to $90 an hour on-line from my home. My story is that I give up operating at walmart to paintings on-line and with a bit strive I with out problem supply in spherical $40h to $86h… someone turned into top to me by way of manner of sharing this hyperlink with me,NBf so now i’m hoping i ought to help a person else accessible through sharing this hyperlink.

        ===============► Cash Mony System

    3. I suspect (but don’t know, because I am not a lawyer) that if a federal judge just ignores SCOTUS precedent that’ll net an almost automatic reversal.

      Now, I am wondering if cops would stop trying to claim QI if every time it was granted, the cop it was granted to happened to accidentally fall into a wood chipper the next week…

    4. You apparently don’t understand anything

    5. The business owners and employees are the ones to suffer ???

      I basically make about $12,000-$18,000 a month online. It’s enough to comfortably replace my I was amazed how easy it was after I tried it . This is what I’ve been doing old jobs income, especially considering I only work about 10-13 hours a week from home.Open & click to home article for more details!!!!!!!!
      CLICK HERE══════►►USA$ DOLLAR$.COM  

      1. GREAT POST

  2. What’s to stop the district courts from ruling against qualified immunity and forcing it back to the Supreme Court? The SC will probably just kick it right back, but if every district in the country starts making the “wrong” decision about this maybe they decide to take another crack at that decision.

    Might not work, but you can at least bury them in paperwork if they refuse to do the right thing.

    1. FWIW, this was the late Ninth Circuit Judge Stephen Reinhardt’s approach. He would rule counter to governing precedent on the basis that the Supreme Court “can’t catch ’em all,” as he put it.

      1. I quit working at shoprite to work online and with a little effort I easily bring in around $45 to 85 per/h. Without a doubt, this is the easiest and most financially rewarding job I’ve ever had. I actually started 6 months ago and this has totally changed my life.

        For more details visit………► Cash Mony System

      2. Exactly. If you think its such a bad precedent, just rule that way. Let the upper courts deal with it. And they won’t deal with all of them.

    2. Because the circuit courts would reverse without it ever getting to the Supreme Court.

  3. Yet Republicans and Trump supporters say the hoopla over QI is stupid, and anyone who mentions it is stupid. Cue the hatred against Reason for contradicting Trump and Republicans.

    1. QI is stupid but so is the hoopla about it including reasons constant articles. We already get it and they are even republishing articles from years past to keep up the drumbeat against cops. And your lame characterization and hyperbole just makes it worse.

      1. Tell that to the people who’ve been fucked over by cops abusing their power, but who have no legal recourse thanks to QI. Dick.

        1. And they can’t be charged criminally why?

          1. They can, but sending a police officer to jail doesn’t really do much to make the property owner whole.

            1. It would certainly appeal to the “satisfaction that he got his comeuppance” factor!

          2. Because the prosecutor is on the same team.

            1. Not “can’t.” That’s too high of a standard. “Wont’t” would be more honest.

              1. `I’ve made $66,000 so far this year w0rking 0nline and I’m a full time student.oiu. I’m using an 0nline business opportunity I heard about and I’ve made such great m0ney.BFd It’s really user friendly and I’m just so happy that I found out about it.

                See……..>> Click here

          3. Same reason DA’s almost never charge cops: they don’t want to.

        2. Don’t you know that isn’t relevant after a week or so? /s

    2. You’re still resorting to strawman arguments huh? Can you even try honest argumentation since you keep pleading for it?

      1. Sarcasm. Hyperbole. It should be obvious when I’m serious or not. Take a sedative.

        1. Your name, it means nothing. Ptaaah!

          Your name, it is useless. Pfooey!

          You name, why do you keep it?

  4. Pottery barn rule (you break it, you bought it) should apply to all actions of the state, as defined in the takings clause of the Constitution.
    If we the people collectively become more secure in our houses, papers, and effects, then it is we the people who must ensure compensation for those among us who suffer directly on behalf of the collective.
    QI should not even be the question here. If a cop breaks it, his department bought it should be the rule.

  5. But there’s a catch: Reeves bemoaned the doctrine of qualified immunity in an opion granting it to a police officer.

    Probably because the judge knew he’d be rebuked by a higher court had he not granted it. Just my guess.

    Also this:

    Jamison brought three claims against McClendon: a Fourth Amendment claim for “falsely stopping him, searching his car, and detaining him”; a 14th Amendment claim for using “race as a motivating factor in the decision to stop him, search his car, and detain him”; and another Fourth Amendment claim for “recklessly and deliberately causing significant damage to Mr. Jamison’s car by conducting an unlawful search of the car in an objectively unreasonable manner amounting to an unlawful seizure of his property.”

    For the lawyers in the group, since we know what we know about qualified immunity, why would his lawyer have advised or agreed to bring a case directly against McClendon? Why wouldn’t he bring a case against the city/county/state/department?

    1. That’s next. Two cases cost more than one.

  6. a cop who; a prison guard who forced

    redacted?

  7. I’d support this judge but I’ve been told by some cockgobbler named ChicagoTom that I secretly support qualified immunity because I support 2A rights.

    1. “I’d support this judge but I’ve been told by some cockgobbler named ChicagoTom that I secretly support qualified immunity because I support 2A rights.”

      Maybe next time make a fucking coherent argument/statement, idiot homophobe.

      I’ve never made any such comment. But carry on making yourself look like an illiterate

      1. Yeah, you did.

        1. “Yeah, you did.”

          No I didnt. Feel free to quote me though.

          In fact I responded to your comment in that thread….feel free to have a read.

          What I said was that the GOP (which is a political party….not every registered republican voter) is both pro 2nd Amendment and anti-police reform. That’s a dangerous conflict.

          Right now any legal gun owner is at risk of being shot during any police encounter if they have a gun on them. That’s a huge problem.

          If someone can be shot for merely opening their front door armed (not brandishing, or threatening to shoot) then you don’t really have the right to bear arms…..

          I never said what you are accusing me of. I am pointing out the conflict in the PARTY and their positions on those 2 issues.

          1. >>That’s a dangerous conflict.

            any person is at risk of being shot during any police encounter whether armed or not.

      2. Quit taking up for cockgobblers! They’re an abomination. It’s not a fear. I’m not scared by any fag or carpet munching bull dyke. The behavior is perverted, filthy, and disgusting.

        1. So don’t engage in those behaviors? Why do you care what your neighbor does behind closed doors?

  8. “The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.” YET THE SUPREME COURT REFUSES TO REVISIT AND NULLIFY THE VERY MONSTER IT CREATED BY DEFLECTING.

    1. Ya, congress already addressed this with 42 U.S. Code § 1983. I looked through it and didn’t see any mention of “clearly established.” The whole thing is so perverse.

      1. Exactly. And Harlow doesn’t say anything about Clearly Established Case Law. The standard ought to be if a reasonable person would find it an unconstitutional denial of rights

  9. It seems like qualified immunity could have been much less of an issue if judges were REQUIRED to rule on whether the case before them violated someone’s rights when they granted qualified immunity. The fact that they no not have to do that, and many do not, means that there is a gaping hole in the relevant case law that should protect future citizens. Judges that grant qualified immunity and do not state whether or not a violation of the person’s rights occurred should be removed from the bench for only doing a fraction of their job. Hopefully this judge at least did that much or his rebuke is truly hollow.

    1. This was my thought as well…

      They should have the trial and set the precedent and then use the fact that there was no precedent to award no damages.

      Then the next state actor who does something quite similar won’t get the benefit of QI.

      The precedent is more important to reforming the system, long term, then the damages.

      But this summary judgement BS and basically no fact finding and no way to set a precedent just adds more injustice to everything.

      We will dismiss the lawsuit because there is no precedent.
      But there is no precedent because the lawsuits are all getting thrown out.

      In this way you guarantee nothing ever changes and no one is ever accountable.

      1. We need judges who ARE NOT SPINELESS, WORTHLESS COWARDS.

    2. I understand the desire but…

      After you determine that QI does apply, why should someone continue to pay their lawyers to argue a case they’ve already lost? Any restitution, any justice, is already excluded.

      Our justice system barely scrapes by with expecting jurors to show up out of civic duty, expecting people to spend years of their lives (and tens of thousands of dollars, if not hundreds of thousands) on a case that they know they can’t win (because the judge told them already)… that’s not sustainable.

      So I agree with the spirit, but that doesn’t seem workable as a practical matter.

      1. I think you missed his point. QI only gets to be thrown out the next time if the judge rules that the behavior met the standard for QI but the judge declares it “wrong”. So, when the judge issues the ruling that the case meets QI, but is clear bullshit, the judge should also rule that it’s bullshit. And since they’re already ruling, it doesn’t require any further effort on the plaintiff’s part.

        1. I understand just fine.

          The problem is that QI is often determined before the case can be ruled on the merits. It’s like Stand Your Ground laws in that it can preempt a full trial, and cut-off a case before you even get to full argumentation.

  10. Qualified immunity is a myth, as this dumbass recently discovered: https://www.youtube.com/watch?v=4JPlcbW5aJs

  11. “”But there’s a catch: Reeves bemoaned the doctrine of qualified immunity in an opinion granting it to a police officer.””

    Why call this a “catch”? Judges are sometimes in the position to apply law when they do not personally agree with it.

  12. “This Court is required to apply the law as stated by the Supreme Court,”

    Says who? When this federal judge took his oath of office he pledged to “.. support and defend the Constitution of the United States against all enemies, foreign and domestic…”.

    Absolutely nowhere in there does it say that prior Supreme Court decisions must be obeyed as if they were unerringly true, nor is it implied. It is apparent that this judge believes the rule put forth in Harlow is in opposition to the constitution. It is his *duty* to give it no weight in his deliberations. The fact that he’ll probably get dinged by the next court up should not influence his decision.

    Marbury vs. Madison brought us judicial review, something which was not explicitly in the Constitution but seems to be at least implied. But no clause nor any case has given us a doctrine of SCOTUS infallibility.

    1. I bet the universe where M v. M was correctly decided is interesting.

    2. Plus what really happens? They get rebuked, but if know the supreme court is wrong, what’s the shame in that? I suppose it might hurt their career, but you gotta take a stand sometimes… and in the long run doing so might actually help a career.

  13. After reading the linked articles of similar QI cases, and subsequent comments, I’m surprised by the calls for “getting rid of” QI.

    Something about a baby and bathwater comes to mind, or am I missing something?

    As someone who’s encountered more than his fair share of cops on a power trip, I’m no apologist for them. I’m also not dumb enough to minimize their importance to our society. Having no form of liability protection for cops all but guarantees a feckless police, too afraid of losing his or her shirt to act even in a righteous manner.

    Of course, I’m already worried about that when I saw the ATL DA refer to that pertinent casualty of stupidity/intoxication as “jovial and cooperative”.

    Then again, maybe I’m still disoriented by all the gaslighting going on these days. LSD ain’t got shit on a steady dose of cognitive dissonance.

    1. Exactly. 98% of the commentariat don’t understand QI, how it applies, or why it is necessary. The problem is in the ridiculous standard that has developed over the years. The original case was about the Nixon Administration firing a whistleblower, not cops brutalizing and stealing from citizens in a blatantly illegal and reckless manner

      1. Like, two minutes on Wikipedia would tell you that you’re the one that doesn’t understand QI, not the rest of us.

    2. OK, you guys are . . . wrong.

      There are two types of immunity government actors get.

      1. Absolute immunity.

      2. Qualified immunity.

      Absolute immunity has always existed. Its part of sovereign immunity. It says that a government agent can’t be sued for their actions as long as they are acting within the scope of their duty.

      Qualified immunity is *supposed* to be protections for government agents that make ‘make reasonable but mistaken judgments about open legal questions’. It has morphed into the current ‘if no one has told you that you can’t do it, you can do it’.

      Scrapping QI in no way removes liability protections from government agents. It simply removes the protections they currently receive for doing horrible shit no one has told them they can’t do but should be, to any reasonable adult with a functioning conscience, known to be wrong.

      It also removes the incentive to remain ignorant of the law and reasonable behavior. After all, if you didn’t *know* that what you were doing was a settled violation of someone’s rights then you can plead for QI. Hence the slate of passes the courts give to cops who don’t know the law and do things like stopping people for a broken taillight when the law only requires them to have one functional one.

      1. So I WAS missing something. Thank you for the edification.

  14. This article get it wrong it two very important ways. First Judge Reeves did not write an opinion for the majority. Judge Reeves is the trial court judge ruling on a motion to dismiss. Second Judge Reeves did not dismiss the entire matter. In section V of his conclusion Judge Reeves set the plaintiff Clarence Jamison’s separate claim for the “reckless[] and deliberate[]” damage to his car, for trial, because Officer McClendon failed to raise an argument on the claim in his motion to dismiss. If the matter goes to trial and it very well may Officer McClendon will have to defend his actions before a jury or before Judge Reeves. It ain’t over.

  15. The question I have is this – did the judge rule on the underlying case? Did the judge rule whether or not the stop and search were a violation of the plaintiff’s rights?

    That’s what’s important to do right now when it comes to QI. Instead too many judges take the easy route of saying ‘not a settled question, you get away with it’ and won’t settle the question. So it happens again and again.

    If not, then who cares how scathing his opinion of QI is. No one cars how loud judges squeal when they don’t do anything about it. If he didn’t then he’s complicit in furthering the abuses of the criminal justice system.

    1. No, the judge didn’t.

      Because they granted the motion to dismiss. Not ruling on the merits is the entire point of ruling to dismiss.

      And yes, that’s the heart of the problem.

  16. Judge Reese ruled that the officers initial physical intrusion of putting his arm inside Jamison’s car window was an unreasonable search. He ruled that Jamison’s consent to search the vehicle was involuntary and he ruled that the subsequent search of the vehicle violated the Fourth Amendment.
    Follow the link in the article and you can read the ruling. It is a great read.

  17. ●US Dollar Rain Earns upto $550 to $750 per day by google fantastic job oppertunity provide for our community pepoles who,s already using facebook to earn money 85000$ every month and more through facebook and google new project to create money at home withen few hours.Everybody can get this job now and start earning online by just open this link and then go through instructions to get started……….►► Click For Full Detail.

  18. QI is one of the more bizarre issues in our public sphere. It is strange to me that such an issue is so built on binary positioning. I mean, it seems like the debate is to either leave it alone or abolish it, when neither option seems to be the best.

    Immunity for certain activities is almost a necessity for police officers, but the current immunity is so strict it’s just baffling. Why isn’t it simple to just reduce the burden of proof for qualified immunity claims? It seems that no one would really disagree with such a change. Yet, all I hear is the only option is to leave it alone or eliminate it all together.

    1. What you are talking about is called ‘absolute immunity’. That means a government actor is shielded from the consequences of their actions as long as those actions are within the scope of their duties.

      Remember – QI is only about 50 years old. Cops were able to function for a couple of centuries without QI just fine.

      Dump QI – which is protection for malfeasance, coverage for ignorance – and they fall under Absolute Immunity. Meaning that as long as the know and follow the law (just like the rest of us have to) they’re safe.

      1. Sorry, I just understand the realities of policing too much. Qualified immunity is still very beneficial for police in doing the right thing. The standard needs to be lower to break it, but eliminating it all together is going to be a headache for police and communities because of it.

  19. I don’t see why any state can’t make peace officers liable for torts against citizens whenever the legislators and/or voters (if sovereign immunity is part of a state constitution) have the guts to stand up and vote for such liability. Suit under §1983 need not be the sole remedy.

  20. The root cause in this case is that politicians pay pigs to rob people over pseudoscience-fired sumptuary superstition laws–as in 1929. The only sane response is to vote for the party that has struggled for almost half a century to do away with those cruel and vicious laws. Bootlicking compromise will only get your face deservedly stomped on. A vote for Jo Jorgensen says to do away with the license to loot and murder with impunity. A vote for the Kleptocracy says “rob me, kill me.” Here’s hoping each gets what each votes for…

    1. Which party are you talking about? It certainly isn’t the Democratic or Republican party.

  21. Google easily work and google pays me every hour and every week just $5K to $8K for doing online work from home. I am a universty student and I work n my part time just 2 to 3 hours a day easily from home. Now every one can earn extra cash for doing online home system and make a good life by just open this website and follow instructions on this page………click for jobs its a limited offER.

  22. Start making cash online work easily from home.i have received a paycheck of $24K in this month by working online from home.i am a student and i just doing this job in my spare HERE? Read More

  23. This is like listening to a bunch of pre-school children feuding about the proper way to do Neurosurgery. You are all, including and especially the author, clueless.

    MY RIGHTS ARE NNOOOOOOOOOOOOOOOOOT CIVIL!!!!!!!!!!!!!!!!!
    THEY ARE NATURAL, INHERENT, UNALIENABLE.
    “CIVIL RIGHTS, CIVIL COURT, IS THE SCAM PERPETUATED BY THE CRIMINAL BAR ASSOCIATION.
    You people wouldn’t know law if it bit you in the ass!!!!!!!!!

  24. We’re mostly on the same page about QI, but I really wish you would stop using that $225k theft as an example. You didn’t read into that story in enough detail. QI applied because the defendants felt the state was liable for an alleged theft by the officers. If the police stole funds under the pretense of collecting evidence, the state has nothing to do with that. It also wouldn’t entitle the defendants to damages as the allegedly stolen goods were already contraband. If the officers who allegedly stole those goods did in fact steal them, the rightful course of action would simply have been to return them to the police as evidence. It was a stupid case, you shouldn’t keep citing it.

Please to post comments

Comments are closed.