Qualified Immunity Is A Near Impenetrable Shield

The fight against police brutality and the Black Lives Matter movement has swept across the nation and brought to light too many examples of a system in dire need of reform. While various movements and legislative pushes have made attempts at this necessary reform, most are doomed from conception as they are battling against a great adversary. This seemingly insurmountable adversary is the judge-made principle of qualified immunity.


Qualified immunity is meant to serve two important interests—holding public officials accountable for any abuses of power and shielding those same officials from frivolous lawsuits encountered while carrying out their duties. Qualified immunity acts as a shield, behind which law enforcement officers and other government actors may seek shelter and usually avoid liability for the consequences of their actions. While not every abuse of power is going to be protected, a large number of unconstitutional abuses have been found worthy of qualified immunity. The reasoning for this is most often that the abuse was not breaking a “clearly established” law. In other words, unless a court has decided on these specific circumstances before AND even the most incompetent officer would know their behavior is wrong, then qualified immunity will likely be granted. Simply put, a law enforcement officer would have to knowingly and intentionally violate a person’s constitutional rights to lose their “shield” of Qualified Immunity.


A prime example of this shield in action is the recent case of McCoy v. Alamu. In this case, McCoy, an inmate in a Texas correctional facility, was forced to endure the searing pain of a chemical irritant sprayed onto his face after a correctional officer, Alamu, had liquid tossed on him from another inmate in an entirely separate cell. McCoy is in many ways the same old, repeated story of an inmate having their Constitutional rights violated and the perpetrator going free because the harm caused did not have clearly established precedent. The U.S. District Court for the Southern District of Texas ultimately granted Mr. Alamu’s motion for summary judgment based on the defense of qualified immunity. The Fifth Circuit Court affirmed this decision, and the case was then appealed to the Supreme Court.


The Supreme Court Recently Creates An Opening By Denying QI

Fortunately, the Supreme Court has begun showing an inclination towards stemming the tide of these unpunished Constitutional abuses. In the startling case of Taylor v. Riojas, the Supreme Court found for the abused Taylor who was forced to suffer unimaginable treatment at the hands of correctional facility personnel. For four days Taylor lived in a cell covered from floor to ceiling in human feces; he did not eat or drink for fear of contamination. It was only after enduring two additional days in a different cell flooded with sewage from a clogged drain that Taylor was allowed some respite. It was with these disturbing facts that the Supreme Court finally reversed the grant of qualified immunity. The Court ultimately held that, “confronted with the particularly egregious facts of this, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”


It was in the immediate wake of Taylor that McCoy arrived at the Supreme Court. In a short reply to McCoy’s petition for writ of certiorari, the Court granted the petition, vacated the Fifth Circuit’s decision and remanded the case back to the Fifth Circuit for further consideration in light of Taylor v. Riojas. With this decision, the Supreme Court is essentially telling the Fifth Circuit that it erred in granting immunity to Alamu. It is also important to note that both Taylor and McCoy are cases brought in the 5th Circuit, which has jurisdiction over appeals from Mississippi’s District Courts (along with Texas and Louisiana). These recent cases will hopefully have a profound, positive impact on how Qualified Immunity is applied in Mississippi.


Reform Of Qualified Immunity is Essential  

These successive rulings against qualified immunity are important for several reasons. First, this could signal a shift in momentum, a tipping of the scales, in favor of victims who have been repeatedly hindered by the Supreme Court’s expansion of qualified immunity protections. Law enforcement officers have enjoyed the benefits of qualified immunity for far too long. This doctrine has essentially provided officers with a get out of jail free card if they happen to employ the use of excessive force, deadly force, and otherwise violate someone’s constitutionally protected rights when such force is not absolutely required. The victims of such crimes are left out to dry, and with little to no recourse for their emotional, physical, or financial injuries.


Second, the McCoy decision will join Taylor in an exclusive club of cases where the Supreme Court has supported the plaintiff. This growing number of cases, while small, could help plaintiffs in the future by providing more precedent to support their claims against law enforcement officers for constitutional violations. This point could be helped further by overcoming what Fifth Circuit Judge Don Willet called the “catch-22” for civil rights plaintiffs. Judge Willet, concurring in part and dissenting in part in the case of Zadeth v. Robinson, said that “plaintiffs must produce precedent even as fewer courts are producing precedent.” This means that as courts forgo the arduous task of analyzing complex constitutional issues and instead opt for the simpler conclusion that no precedent exists for which the plaintiff to base their claim in, courts are essentially closing the path for future claims by simply not producing precedent. “No precedent = no clearly established law = no liability.”


Third, in combination with both prior points, by sending McCoy back to follow the Taylor precedent, we are shown that Taylor was not simply a unique case with terrible facts, but instead a possible sign of real change. However difficult the task may be, it is only through recounting these terrible cases that we can create a level of precedent for these wrongs to be righted. Only by shining a light on these reprehensible acts can we see how far our system has fallen and just how blurred the line between lawful and unlawful has become.


Calls for change have continued to get louder over the past several months and some are even local, coming from Mississippi. Just last August, Judge Carlton Reeves, a federal judge for the Southern District of Mississippi, gave an emotional description of all that qualified immunity has truly provided us. Judge Reeves, in an opinion where he reluctantly grants a request for qualified immunity, calls upon the Supreme Court to set straight a status quo that is “extraordinary and unsustainable.” Judge Reeves continues in asking the Supreme Court to sweep away the doctrine of qualified immunity, just as the Court swept away the mistaken doctrine of “separate but equal.”


As the calls for reform move from protestors in our streets to judges in our courts, the chance for change becomes ever more achievable. These judges are tasked with the great endeavor of undoing the damage that qualified immunity has inflicted, not only on its victims but also on the confidence that people have in our justice system. By finally finding these abuses unconstitutional and holding the perpetrators liable for their actions the court has started down a path that will undoubtably be a difficult one, but one that is necessary to achieve a fair and equitable justice system. Just as Judge Reeves finished his own condemnation of qualified immunity, we too shall use his powerful words in closing ours: “[t]hose who violate the constitutional rights of our citizens must be held accountable. When that day comes we will be one step closer to that more perfect Union,” so then, “let us waste no time in righting this wrong.”