Ronald Simpson-Bey on how a current court case could take down “qualified immunity” for police and prosecutors

By Ronald Simpson-Bey (Leading with Conviction™ 2015):

In 2012, after having served 27 years in prison, my Michigan criminal conviction was overturned on the grounds of prosecutorial misconduct. At the time, Michigan did not have compensation laws for wrongful convictions, and because of the “absolute immunity” and “qualified immunity” doctrines, I was not able to sue the prosecutor nor law enforcement agents whose misconduct was the basis for my conviction being overturned.

For this reason and others, I have argued for years that qualified immunity protections should be eliminated in cases of clearly established misconduct done by government actors. The establishment of misconduct does not get any clearer than a formal ruling by a federal court that a government official acted improperly and in contravention of Constitutional law, as in my case.

It is interesting that “qualified immunity” is not spelled out in the U.S. Constitution. This doctrine was invented by the Supreme Court out of whole cloth to immunize public officials from lawsuits even when they commit legal misconduct unless they violated “clearly established law.”

“Qualified immunity” is not spelled out in the U.S. Constitution. This doctrine was invented by the Supreme Court out of whole cloth …

The basis for the immunity doctrine originated in 1871, after Congress passed the Ku Klux Klan Act, which allowed people to sue law enforcement officers who violated their Constitutional rights. The Klan Act was intended to curb white supremacist violence against Black Americans. However, in 1967, the Supreme Court flipped the Klan Act on its head. They “interpreted” the Act to provide, what they called, “qualified immunity” to law enforcement officers who violate Constitutional rights in “good faith.”

Originally the Court’s rationale was one of protecting law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations. Starting around 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force by police, leading to widespread criticism that it, in the words of a 2020 Reuters report—published in the immediate aftermath of George Floyd’s killing by Minneapolis police, four years ago this week—“has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”

In the end it boils down to a display of white privilege built on the underpinnings of white supremacy. This judicial interpretation has allowed law enforcement officers to escape accountability for their misconduct and abuse of power. That standard is incredibly difficult for civil rights plaintiffs to overcome, because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts. In my opinion, the doctrine undermines the clearly defined federal statute, 42 USC § 1983, that allows a plaintiff to sue for damages when state officials violate his or her Constitutional rights or other federal rights.

However, there has been some movement to address the inherent inequities of qualified immunity. In 2020, the state of Colorado created a wide-ranging police accountability law, Colorado Senate Bill 20-217, known as the Enhance Law Enforcement Integrity Act. The most notable part of the Bill was the elimination of qualified immunity. As stated by Colorado State Representative Leslie Herod, who wrote the new law, said: “If officers are rethinking [their career] because of a law of integrity and accountability, then they shouldn’t be in the profession as a police officer. Their duty is to serve and protect, not kill. It is very important that law enforcement officers think before they act.”

Recently, Mississippi federal judge Carlton Reeves ruled in the case of Desmond D. Green v. Detective Jacquelyn Thomas, Et Al., denying a claim of qualified immunity made by a detective who used a lying, drug-impaired jailhouse informant to lock-up Mr. Green. The detective also steered the informant to select Green’s face from a photo lineup.

Most plaintiffs in this situation argue that the officer that wronged them isn’t entitled to qualified immunity. Green does that. Unlike others, though, he has taken the next step and argued that qualified immunity is itself unlawful. He joins lawyers, professors, judges, and even Supreme Court justices who have called for the doctrine’s re-evaluation, if not its abolition. As Judge Reeves concluded—and I wholeheartedly agree—“qualified immunity has no basis in law. It is an extra-constitutional affront to other cherished values of our democracy.”

Ronald Simpson-Bey is Executive Vice President of Strategic Partnerships for JustLeadershipUSA, one of the nation’s only not-for-profit criminal justice reform organizations that is both founded by and led by formerly incarcerated people.