Qualified Immunity And The History That Drove The Doctrine

Feature Article

Added by Chris Bailey

06 June 2021 

The doctrine of Qualified Immunity is a heavily debated topic in 2021, and the history of its creation runs deep. The most recent case which addresses qualified immunity was decided by SCOTUS Taylor v. Riojas (2020), involving an inmate held in a Texas Correctional Facility under deplorable conditions in Lummock, Texas.
The 5th District ruled an 8th Amendment(prohibiting cruel and unusual punishment) violation occurred, however Taylor’s (the petitioner) evidence concerning the conditions of incarceration was NOT of a substantial duration to constitute a violation of his civil rights. The 5th District relied exclusively on lower court interpretations of the Harlow v. Fitzgerald (1982) SCOTUS ruling, that required prison officials responsible for Taylor’s confinement to have “fair warning” that specific acts were unconstitutional. This would be evidenced by specific legislation or court cases that have substantive information to provide training for government employees. For this reason, the 5th District ruled Qualified Immunity could not be waived to allow civil damages to be pursued against corrections department employees.
The Supreme Court ruled on 2 November 2020 Taylor v Riojas https://www.scotusblog.com/case-files/cases/taylor-v-riojas/ to set aside the finding that Qualified Immunity could NOT be waived, and returned the case to the 5th District for further consideration. SCOTUS ruled (7-1), with Justice Barrett taking no part in the case, as she was newly seated on the Court. Justice Thomas chose to dissent, with no opinion. His prior writings on qualified immunity cases clearly indicate his dissent was not based on any merit of this case, but that lower courts have taken an overly broad interpretation of Harlow v. Fitzgerald (1982). This SCOTUS finding in Taylor v. Riojas (2020) is a clear indication to lower courts an interpretive review of prior SCOTUS qualified immunity rulings is needed and warranted. When SCOTUS first created qualified immunity as a protection for law enforcement in 1967, and expanded these protections for all government employees 15 years later, there was NO consideration of the effect this Constitutional “carve out” for a segment of our population would have on the balance of the citizens of our Nation.
Seeds were planted when our Nation began. At the formation of our Country, we must consider the heinous bargain struck to keep slave owning States in the new Union. Founders of our Nation wanted to ensure our Republic could survive Constitutional Conventions and negotiations between Colonies. There were also heated debates calculating the number of Representatives for each State within the Union.
The solution was to factor the census of the slave population. A Census, or count of our population is part of our Constitution.https://www.britannica.com/topic/three-fifths-compromise Slaves were counted as three-fifths of a free man, for the purpose of the National Census. As completely wrong as this is today, the compromise was struck to retain slave owning States in the Union. To those who opposed any weighted count this debate could be held for another day, after our Country was well established.
As our young Nation grew, the Supreme Court ruling in Scott v. Sandford (1857) https://www.ushistory.org/us/32a.asp and the election of the first Republican Party candidate in Abraham Lincoln https://www.history.com/this-day-in-history/republican-party-founded are considered to be the flashpoints, or “last straws” that led a number of slave owning States to secede from the Union, the formation of the Confederate States, the Civil War and tremendous bloodshed.
As the Union and Confederate Armies fought, President Lincoln issued the Emancipation Proclamation on January 1 1863 https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation This action caused a number of reactions. First, slaves fled their homes, and traveled to either free States, or Union-held portions of States where slavery was abolished. Many freed slaves joined the fight against their former owners. The proclamation also froze foreign interest to support the Confederate Army. This was a real concern of the Union Army and Navy. As the census compromise struck by our founders assured our Union, Lincoln’s action was an approach to reach a goal for our future Nation.
Was it flawed? Of course, as the Proclamation only emancipated slaves in States that had seceded from the United States and in conflict with Union forces. Much has been made about this calculation, claiming President Lincoln wasn’t concerned about slavery, but only seeking a military or political advantage. Seeking this advantage in the quest to win a war, which ended slavery in our Country proved to be successful in bringing the Civil War to a conclusion.
13th Amendment. Passed by Congress on January 31, 1865, and ratified on December 6, 1865, the 13th amendment abolished slavery in the United States and provides that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”https://constitution.congress.gov/constitution/amendment-13/
Declaring slavery illegal in the States wasn’t enough for a number of reasons. Economically, slavery was a driving force of slave owning State prosperity https://www.history.com/news/slavery-profitable-southern-economy and the infrastructure of slavery wasn’t erased by the ratification of an amendment. An agreement between the slave owning States and the balance of the Union to ban slavery 20 years after the Census compromise was never honored. The mindset and training of both a master and slave were not changed by the amendment. Considering the education disparity of the former slaves, it is reasonable to suggest it could take 50 years to integrate slaves into American society as free self-reliant persons. Modern technologies with cooperation require at least 10 years to reach similar goals.https://blog.fightingforyourjoy.com/creating-resilient-communities-that-are-self-reliant-adaptable/ Former slave States were not cooperating.
The Civil Rights Act of 1866 was passed by Congress in 1865, but had to survive a veto by then President Andrew Johnson. The Bill did not. It was intended, in the wake of the American Civil War, to protect the civil rights of persons of African descent born in or brought to the United States. On April 9, 1866 Congress again passed the Civil Rights Act of 1866 to support the Thirteenth Amendment with a veto proof two-thirds majority of each chamber. This was the first United States Federal law to define citizenship and affirm that all citizens are equally protected by Federal Code. It was not a popular law, as Congressmen argued that Congress did not yet have sufficient constitutional power to enact such a law. Following passage of the 14th Amendment in 1868, Congress reenacted the Civil Rights Act of 1866 in 1870.
In the Reconstruction Era, between 1870 and 1871 the U.S. Congress passed the Enforcement Acts, criminal codes that protected the rights of Black Americans to vote, hold office, serve on juries, and receive equal protection of laws. When States failed to act to protect their citizens, these Federal laws allowed the Federal government to intervene.
The last Enforcement Act passed by Congress was called the Enforcement Act of 1871 or simply the Ku Klux Klan Act. https://history.house.gov/HistoricalHighlight/Detail/15032451486 This Act empowered the President to suspend the writ of habeas corpus to combat the Ku Klux Klan (KKK) and other white supremacy organizations. The act was passed by the 42nd United States Congress and signed into law by United States President Ulysses S. Grant on April 20, 1871. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts. Several of the act’s provisions still exist today as codified statutes.
In March 1883 SCOTUS ruled (8–1) in Civil Rights cases supported by various States that the Thirteenth Amendment banning slavery, and the Fourteenth Amendment insuring equal protection under the law to African Americans outlawed uncodified racial discrimination. In essence, SCOTUS ruled both amendments were too vague to be enforceable, which made them unconstitutional. The Civil Rights Act of 1866 was nullified, and gutted the force of law of both the 13th and 14th Amendments.https://supreme.justia.com/cases/federal/us/109/3/
This SCOTUS ruling would remain in force for nearly 80 years, when SCOTUS upheld the Civil Rights Act of 1964. https://www.archives.gov/legislative/features/civil-rights-1964/civil-rights-act-1964.html
It only took 3 years for SCOTUS to create an entirely different class of citizen, by carving out a specific immunity for law enforcement. In Pierson v. Ray (1967) the Supreme Court first justified the need for qualified immunity from civil rights violation lawsuits for law enforcement officers by arguing “that a policeman’s lot is NOT so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in(fined) damages if he does.” Chief Justice Earl Warren. Pierson was a preacher, and NOT Black. The only Black party in the lawsuit was James P Breeden. The Defendants were Captain Ray, two of his officers, and a Judge Spencer, who presided over the State case in Mississippi. Associate Judge Douglas was the only dissent, due to his opinion that Judge Spencer should not have the protection of Absolute Immunity, which was ruled intact by the other eight Justices. Historically, the Supreme Court led by Warren has been identified as a Liberal Court https://www.supremecourt.gov/DocketPDF/17/17-1142/39193/20180316155535905_17-1142%20Amici%20Brief–PDFA.pdf
In Harlow v. Fitzgerald (1982) SCOTUS expanded qualified immunity in what is considered the current test, extended to all government officials.
“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” https://supreme.justia.com/cases/federal/us/457/800/ This wording was meant to eliminate a problem that the Justices saw as obvious. Long court battles to determine the state of mind of a government official deters officials from performance of their duties, distracts the government from current issues, and discourages citizens from acceptance of public office. Lower courts have determined since this 1982 ruling that the wording “clearly established statutory or constitutional rights” to mean past court rulings and codified (Federal and State) law that a trained officer would know.
Historically, the Burger Court, which ruled in Harlow v. Fitzgerald is considered a Conservative court in the opinion of every source reviewed. Chief Justice Burger was the only dissent, and his opinion was based on his belief that the Absolute Immunity of the President extends to Presidential senior aides, which the Court struck down in this ruling
“Sovereign Citizen” has come to be used by persons who object to the overreach of government, and desire to remove themselves from government control at every level. The concept arose from the Supreme Court rulings in Dred v. Sandford (1857) where Dred Scott petitioned for his citizenship, and the Court ruled he was not an American citizen or a citizen of any country. The decision was overturned in 1858 with the passing of the 14th Amendment granting full citizenship to African-Americans. This amendment was nullified by the Supreme Court in 1883, then recertified with the Civil Rights Act of 1964. I’ve witnessed the term used derisively by law enforcement toward a citizen who refuses to identify unless an officer can state Reasonable Articulable Suspicion (RAS). SCOTUS created Qualified Immunity Doctrine in 1967, and reinforced the doctrine in 1982. Government officials became judicially “quasi-sovereign”. At the least, they enjoy specific rights above all other citizens of the United States.
Americans are questioning this doctrine of Qualified Immunity, and asking if it’s time for our Nation to move from the protections that were needed in our history, toward a new future where each American has the same Rights, Freedoms and Consequences as others.

Chris Bailey is a reporter-at-large of citizensjournal.us, a business owner, military veteran and long time resident of Camarillo

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