Federal Judge Carlton Reeves, of the Southern District of Mississippi, ruled that the doctrine of qualified immunity meant that a white police officer could not be sued for racially profiling and then terrorizing an innocent black man on the side of the road. Judge Reeves ruled that the law required the dismissal of the case but in the process he wrote a lengthy and powerful piece on why its time for the doctrine to go. He also lambasted the Supreme Court for repeatedly refusing to take on the issue.
But the decision’s strongest point is its introduction. (NOTE:the parentheticals were contained in footnotes in the original decision)
Clarence Jamison wasn’t jaywalking (That was Michael Brown). He wasn’t outside playing with a toy gun (That was Tamir Rice). He didn’t look like a “suspicious person” (That was Elijah McClain) He wasn’t suspected of “selling loose, untaxed cigarettes” (That was Eric Garner). He wasn’t suspected of passing a counterfeit $20 bill (That was George Floyd). He didn’t look like anyone suspected of a crime (That was Philando Castille and Tony McDade). He wasn’t mentally ill and in need of help (That was Jason Harrison). He wasn’t assisting an autistic patient who had wandered away from a group home (That was Charles Kinsey). He wasn’t walking home from an after-school job (That was James Earl Green). He wasn’t walking back from a restaurant (That was Ben Brown). He wasn’t hanging out on a college campus (That was Phillip Gibbs). He wasn’t standing outside of his apartment (That was Amadou Diallo). He wasn’t inside his apartment eating ice cream (That was Botham Jean). He wasn’t sleeping in his bed (That was Breonna Taylor). He wasn’t sleeping in his car (That was Rayshard Brooks). He didn’t make an “improper lane change.” (That was Sandra Bland) He didn’t have a broken tail light (That was Walter Scott). He wasn’t driving over the speed limit (That was Hannah Fizer). He wasn’t driving under the speed limit (That was Ace Perry). No, Clarence Jamison was a black man driving a Mercedes convertible.”
Jamison was pulled over by officer Nick McClendon, allegedly because he claimed that the car had a temporary license plate that was folded over. Jamison provided all the paperwork asked for – registration, license, insurance – and told the officer he had just bought the car two weeks earlier. McClendon took the paperwork and ran it through a computer check. It all came back clean, and verified Jamison’s story. That is where it would end for most Americans. But not for a male black in Mississippi.
As he got ready to leave, the officer put his hand on the inside of the passenger door and told Jamison to wait. He went back to run Jamison’s name through the NCIC, a national criminal record database. Before the NCIC report came back, the officer went back to the car and repeatedly asked if he could search the car. When Jamison asked “Why?” and “What for?” the officer twice lied stating that he got a tip that Jamison had 10 kilos of cocaine in his car.
After being harassed for a consent search more than four times, Jamison ultimately relented. By now two more officers arrived and they proceeded to basically tear the interior of the car apart. Finding nothing illegal, the officer then asked Jamison if would let a canine unit sniff the car. Jamison consented, the dog was brought in and of course nothing was found.
Although he was physically uninjured during the process, Jamison was left to stand by the side of the road in the middle of the night while his new car was torn apart. The stop and search lasted two hours. Or as the judge noted enough time that “Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas” (noting the 119 minute runtime of The Wizard of Oz).
Jamison sued for violation of his constitutional rights under 42 USC 1983 a powerful tool originally passed in 1871 and meant to stop the Ku Klux Klan, some of whom were law enforcement officers. Judge Reeves goes through a lengthy analysis of the powerful intent behind the statute then summarized its purpose:
The Act’s mandate was expansive. Section 2 of the Act provided for civil and criminal sanctions against those who conspired to deprive people of the “equal protection of the laws. Sections 3 and 4 authorized the use of federal force to redress a state’s inability or unwillingness to deal with Klan or other violence. The Act was strong medicine.
But then came Reconstruction and the Jim Crow Era and courts were unwilling to employ the full strength of the Act. And just as the liberal Supreme Court of the 1960s revived the Act’s strength and vitality after Brown v. Bd. of Education, conservative judges and courts thereafter have returned to narrow its reach. And no doctrine has been more powerful in diminishing the Act’s remedies than “Qualified Immunity.”
Created by the Supreme Court, qualified immunity holds that officers should be shielded from liability when acting in good faith – at least in the context of constitutional violations that mirrored the common law tort of false arrest and imprisonment. Subsequent decisions expanded the policy goals behind qualified immunity. The Supreme Court eventually characterized the doctrine as an “attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.” Sure, but it has gone on well beyond that.
Once, qualified immunity only protected officers who acted in “good faith.” The doctrine has been broadly and regularly expanded so that it now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.” In 2011, SCOTUS added “beyond debate” to “clearly established” and said that the motive of the officer was largely irrelevant. As Judge Reeves explains:
In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.” An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law.
This of course would allow suit only in the most egregious and extreme cases. Courts are reluctant to find that an officer has broken a law that is “clearly established.” And since SCOTUS readily encourages federal courts to dismiss under qualified immunity as soon as possible, most cases get dismissed without any discovery at all and then rarely get appealed – a lengthy and expensive process. That means that there are not a lot of decisions plaintiffs can rely upon to prove that a violation of a law that was clearly established occurred.
Fifth Circuit Judge Don Willett has succinctly explained the problem with the clearly established analysis:
Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.
Applying the analysis to this case, Judge Reeves first said that the search was not consensual due to the numerous requests, positioning of the officer’s arm deep into the vehicle, and the lies the officer used to get the consent. Adding to those facts, the court said it could not also ignore the elephant in the room:
Jamison was a Black man driving through Mississippi, a state known for the violent deaths of Black people and others who fought for their freedom. By the time Jamison was pulled over, more than 600 people had been killed by police officers in 2013 alone.2 Jamison was stopped just 16 days after the man who killed Trayvon Martin was acquitted. On that day, Alicia Garza wrote a Facebook post that said, “Black people. I love you. I love us. We matter. Our lives matter, Black lives matter.” And that week, “thousands of demonstrators gathered in dozens of cities” to commemorate Martin “and to add their voices to a debate on race that his death . . . set off.”A movement was in its early stages that would shine a light on killings by police and police brutality writ large – a problem Black people have endured since “states replaced slave patrols with police officers who enforced ‘Black codes.’” Jamison’s traffic stop cannot be separated from this context. Black people in this country are acutely aware of the danger traffic stops pose to Black lives.
But that did not end the analysis as the judge had to determine whether it was clearly established that “an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person’s car during a traffic stop while awaiting background check results has violated the Fourth Amendment.”
He ruled that it was not clearly established since plaintiff provided no other similar cases. He noted that since Congress is unlikely to act in this arena any time soon, its time SCOTUS shed qualified immunity like it did “separate but equal” or at least restored it to its original “good faith” analysis. He notes that Justice Thomas and Justice Sotomayor have stated in opinions that they believe qualified immunity has been stretched too far. Judge Reeves stated that qualified immunity turned a law designed “to protect the people from the government into a law that protects the government from the people.”
Despite the eloquence and clarity of Judge Reeves decision, I see no end to Qualified Immunity any time soon. After all, even he felt obligated to dismiss the 1983 claim against the officer. Maybe the right case will come along where the Court can chip away at it piecemeal. In the meantime, people like Mr. Jamison, whose Constitutional rights have been violated, will have no recourse against bad State actors.
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