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The fight to End Qualified Immunity- Part I
Albert Constantine Jr. 5/3/2021 2:06 PM

20210501-CONSTANTINE-The fight to End Qualified Immunity- Part I


Back in 1871, when the Ku Klux Klan was the terrorist wing of the democrat party in states that joined the former confederacy, Congress passed a statute currently codified as 42 U.S.C. 1983 which states today "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress¯."


This statute by its plain language seems to allow for civil redress against any person acting on behalf of a government entity who deprives another person of their constitutional rights. In reality, though, there are significant limitations to the size of this door to the federal court house. When the House of Representatives passed the George Floyd Justice in Policing Act H.R. 7120 in March of 2021, one of these limitations in particular that the act is attempting to eliminate is the doctrine of qualified immunity.


Basically, qualified immunity from such civil suits applies when the civil right that was violated was not clearly known to be a civil right by the person acting on behalf of the government, when the action that resulted in its deprivation was taken, or that the action taken was clearly a violation of that civil right. Such an exemption is also known as a "good faith exception."


While there are common law origins to this defense doctrine, it was applied with respect to civil rights deprivation civil suits (1973 civil suits) by the Supreme Court of the United States (SCOTUS) in Pierson v. Ray in 1967. The lawsuit in this case stemmed from the 1961 arrests of a racially integrated group of traveling clergymen who entered a racially segregated interstate bus travel terminal in Jackson, Mississippi and refused to leave. Though there were convictions for the offenses by the local magistrate, these were later overturned at a new trial on appeal, and the statute under which the arrests were made was subsequently found to be invalid following a SCOTUS decision in 1965.

The clergymen filed the federal civil rights suit against the magistrate and the arresting officers following their acquittal, and lost before a jury in federal court. On appeals and cross-appeals from the result brought it before SCOTUS, who ruled in an opinion issued by Chief Justice (CJ) Earl Warren that the magistrate was absolutely immune from suit as a result of as a result of judicial immunity, which derives from the common law principle that judges are individually exempt from liability for the actions that fall under the realm of the judicial jurisdiction, and was recognized by SCOTUS as applying to the civil rights act as early as 1872. The opinion by CJ Warren also notes that the doctrine of legislative immunity with respect to 1973 civil suits was recognized by SCOTUS in 1951 in Tenney v. Brandhove. The opinion goes on to note that if the Congress wished to abolish all common-law immunities when it passed the act originally, it is presumed that they would have specifically provided for this in the statute.


In passing H.R.7120 - George Floyd Justice in Policing Act of 2020, the House of Representatives is attempting to do exactly what Chief Justice Warren was alluding to in the opinion that enshrined qualified immunity for police officers acting in good faith. The statute as sent to the Senate notes:

Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following:

It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2020), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that”

(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or

(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.¯.


 It is significant to note that Congress consciously chose to remove the doctrine of qualified immunity for local and federal law enforcement officers acting in good faith but chose to leave intact the doctrines of legislative immunity that protects its members and the members of other legislative bodies from individual civil liability for their actions, and chose to leave intact the immunity enjoyed for judges for their actions.


Some attention was paid during the last presidential election cycle regarding the impact of the Crime Bill of 1994 and related legislation that Joe Biden sponsored, as a result of which it is claimed that disparate impact was experienced by minorities, leading communities of color¯  to become "communities of collar¯". If such claims were substantiated and individual civil rights violations were established as a result of his creation of the laws and actions that resulted from this act, Biden would remain exempt from civil liability for his role. Similarly, all of the judges who imposed the sentences that resulted in the allegations of mass incarceration would continue to be immune from civil liability deriving from the consequences of their judicial acts.


One of the points of genius America's Founding Fathers are sometimes given credit for is the creation of checks and balances between the legislative, judicial and executive branches of government. In attempting to diminish qualified immunity while leaving their own immunity intact, the House of Representatives could be seen as cynically trying to erode the power of the executive while preserving its own.


In the Parts to follow, further implications of The Attack on Qualified Immunity will be explored.


Click here to see more great commentary by this author.

Albert Constantine Jr.
Albert Constantine Junior is the pseudonym of a Delaware native who grew up in the county council district once briefly represented by Joe Biden, and has followed the antics of the current occupant of the White House since that campaign. A fellow alumnus of the University of Delaware, following graduation, Albert spent the next few years on active duty with the United States Marine Corps, and the decade that followed in reserve status while pursuing a career in law enforcement that lasted more than thirty years in the state of his birth. As military and criminal justice policy is intertwined with politics, Albert has had the opportunity to observe and participate in this process as well at the state, local and national level, and occasionally feels the need to comment and opine on the issues of the day and historical events that have brought our country to the precarious point where it can currently be found. These observations and opinions are based on this knowledge and experience and are Albert's alone, and do not necessarily represent the viewpoints of any other family member or other Delaware resident (though it is unlikely that many will have a better recollection of events or facts that contradict most assertions).

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