Qualified Immunity Shouldn't Qualify To Continue


We have a 7th Amendment U.S. Constitutional right to a jury trial.  Such a right should, in theory, provides protection from a government gone wild and without accountability.  Alas, in theory, when the government wrongs someone, causing damage and pain, the government could be held liable through a jury trial.  Unfortunately, that right to a jury trial has been subverted for many years and is still being subverted by a doctrine invented by our court system.  That insidious doctrine is called qualified immunity.  Under this ill-conceived doctrine, our government, our law enforcement, the system that is supposed to serve us, has been permitted to cause untold horrors on our people.  Don’t get me wrong, I am not anti-law enforcement.  I appreciate and value a system of law and order and am grateful that we have men and women dedicated to uphold and enforce the law.  The problem is, under the qualified immunity doctrine, these people become above the law.  That is not right.  That is not justice.  It leaves a powerful group of people without accountability and unchecked.  Because of that, countless people have been shot, maimed, and severely injured, with no recourse.

How can this possibly be?  Under the qualified immunity doctrine, in order to be able to proceed with a case against the government, the injured party is first required to prove that the law violated was “clearly established” or “beyond debate.”  This might initially sound innocuous.  The problem is, to a lawyer, EVERYTHING is debatable and thus not “beyond debate.”  So, since the majority of issues are arguably debatable, it can’t proceed forward to a jury trial and therefore the government wins due to qualified immunity.  Yes.  That is unfair.  It is so difficult to prevail in a 1983 action that most lawyers won’t even take on such cases, even where the person was clearly and obviously wronged by the government.

It is somewhat understandable why this doctrine was first implemented, but in reality it truly was ill-conceived. Furthermore, it has just become too rampant and misused.  In 1982, it became especially burdensome when it was decided that it was insufficient to prove that the government violated a Constitutional Right.  Instead, the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.”  Again, that is a ridiculously high standard.

However, the tides are changing!  In a recent August 2020 Mississippi Court case decision, Clarence Jamison v. Nick McClendon, the Judge stated, “…every hour we spend in a § 1983 case asking if the law was “clearly established” or “beyond debate” is one where we lose sight of why Congress enacted this law those many years ago: to hold state actors accountable for violating federally protected rights.”

In that case, the District Judge wanted to rule in favor of party that was abused by a police officer.  The judge knew that ruling in favor of the injured party was the true act of justice.  Unfortunately, he couldn’t do justice for the injured party because of the qualified immunity doctrine.  However, in that decision, where he ruled in favor of the officer, he blasted the qualified immunity doctrine and the Supreme Court.  In his clear and persuasive legal order, he hammered the Supreme Court Justices for allowing this insurmountable blockade called qualified immunity.  He implored them to proactively address it.

To be clear, the government won the battle in that recent court case.  But the war is just beginning and many feel it was a blow to the government as it is clear that the judiciary are starting to listen.  As of yet though, there hasn’t been sufficient action by the Supreme Court justices.  That is interesting, given the fact that even known conservative, now deceased justice Supreme Court Justice Scalia, was critical of qualified immunity.  It has also been criticized by numerous other members of the United States Supreme Court.  I imagine that they have not acted proactively, because they want the legislature to take action.  But in my opinion, it is time that they rule against this egregious doctrine as a violation of the 7th Amendment.  As an attorney who is dedicated to the Constitution, I agree with the District court Judge in the recent decision who said, “The status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.”

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