Not only many liberals, but also many conservatives, were grimly disappointed when the U.S. Supreme Court bypassed its chance to correct deficiencies in the federal “qualified immunity” doctrine.
Both Justice Clarence Thomas and Justice Sonia Sotomayor objected to the court’s decision — and you can’t find many jurists more politically divergent than these two.
The doctrine grants a level of immunity from civil lawsuits to government officials performing discretionary duties. A lawsuit can be filed alleging abuse or misuse of power only if the official violated a “clearly established statutory or constitutional rights of which a reasonable person would have known.”
In general, a certain amount of civil immunity is a good thing. It protects officials from being hounded for innocent mistakes or simple errors of judgment committed without ill intent.
Local councilors and county supervisors are typically laymen and women who voluntarily take on enormous responsibilities — and attending pressures — in representing their constituents. Although they undergo training on legal and civil rights issues, they do not — and should not be expected to — have the depth of knowledge that a legal professional might have.
Without some kind of protection against hostile lawsuits, many good men and women would be discouraged from running for office.
However, the current doctrine sets up an impossible standard in describing the circumstances under which suits can be filed.
In order to file suit for a violation of civil rights, plaintiffs first must clearly show that highly similar cases were affirmed by U.S. appellate courts or the Supreme Court.
That means civil rights suits can only follow an existing track; they can deal only with topics that already have been decided. If a public official violates civil rights in a manner that has not already been dealt with, it’s unlikely that a lower court would risk accepting a suit that addresses a novel situation.
This locks case law into a bizarre status quo, and leaves who knows how many civil rights violations outside the scope of remedy.
What’s more, it isn’t even part of the original law; it’s a legal doctrine that has grown up around the law.
The Supreme Court had the chance to correct this sclerotic condition, and it declined to even address the problem.
Before hearing about Judge James A. Wynn Jr.’s objections to that decision, we might have speculated that the conservative-leaning court skipped out on tackling the problem out of an overabundance of caution during these “defund the police” days. With police departments across the country facing protests and calls for defunding after being accused of numerous civil rights violations — too often resulting in needless deaths of those in their custody — might it be possible that the court did not want to provide added opportunity to take action against police?
But Judge Wynn — a North Carolina member of the 4th U.S. Court of Appeals, which meets in Richmond — has a different, but compelling, viewpoint.
Failure to provide options for lawsuits in response to civil right violations doesn’t protect police. Instead, it makes their jobs all the more difficult, he says.
Judge Wynn grounds his premise in the fact that the qualified immunity doctrine is not part of the Civil Rights Act of 1871.
“When the judiciary effectively nullifies congressional legislation specifically designed to provide a remedy to those who have been subjected to constitutional violations, it necessarily moves our society closer to a Hobbesian state ungoverned by predictable rules,” he wrote in an op-ed to The Washington Post.
That unpredictability manifests in anti-police protest movements, demands to strip police departments of funding, loss of trust between the people and the police, and a host of other ills.
When the people have no recourse through the courts to correct wrongdoing, they learn to distrust the system — a not unreasonable reaction when the system is fundamentally flawed, and is allowed to remain flawed.
And when they have no legal outlet for their grievances, their frustrations may erupt in other ways — as we are currently seeing.
To correct civil rights violations, those who have been wronged should have the opportunity to seek remedy through the courts. But when the courts refuse to allow that remedy, the first thing that must be corrected is the doctrine that blocks such action.
For reasons stated above, qualified immunity should not be demolished. But neither should it be so tightly controlled that no new categories of violations can ever be considered.