COLUMNS

MARTI CROW: Where did qualified immunity come from?

Marti Crow
Marti Crow

Recently an unfamiliar term has been used by the media as the nation conducts a serious conversation about policing. What is “qualified immunity” and how does it protect policemen who are accused of excessive force? I am not a law professor but I have stayed in a Holiday Inn Express (and graduated law school, too).

Qualified immunity shields any government official from being held personally liable for discretionary actions performed within their official capacity unless their actions violate “clearly established” federal law. It only applies when an alleged victim sues an officer, claiming the officer violated their constitutional rights. Congress did not enact this protection. It was created by the U.S. Supreme Court in 1967. In Pierson v. Ray, a group of 15 priests in the Episcopal Society for Cultural and Racial Unity, which included three Black priests, were involved in Freedom Rides. Rev. Robert Pierson, son-in-law of Gov. Nelson Rockefeller, was a member of the group.

In September 1961, the group entered the coffee shop at the Continental Trailways bus terminal in Jackson, Mississippi, to eat lunch prior to departing for Nashville, Tennessee. Two policemen stopped them as they entered and asked them to leave. When they refused, they were arrested for “breach of peace.” They were convicted and a municipal judge sentenced them to four months in jail and a $200 fine. They appealed the case to the county court where the case was dismissed; the judge ruled there was no violation of law. The priests then sued the policemen in Jackson Federal District Court, claiming that the policemen had violated Title 42, Section 1983 of the Ku Klux Klan Act.

The KKK Act was passed in 1871 during the Reconstruction Era to protect minority citizens from attacks by the Klan. The statute has had only minor changes in the last 149 years.

President Ulysses Grant requested that Congress create a law to empower him to combat the Klan and intervene in states where there were widespread racial threats and deprivation of civil rights. Grant used the power numerous times during his presidency, and, as a result, the first era KKK was completely dismantled and did not resurface until the first part of the 20th century.

The group of priests claimed that the policemen and the municipal judge had violated the KKK Act by false arrest and imprisonment for exercising their civil rights. The jury found in favor of the police, who claimed they were trying to prevent imminent violence from a gathering crowd. The priests appealed to the U.S. Fifth Circuit Court of Appeals, which found the Mississippi breach of peace law unconstitutional.

However, that court found that “Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not.”

The case was appealed to the Supreme Court on behalf of four of the priests, Pierson, John Morris, James Jones and James Breeden. Breeden was the only black petitioner. The defendants were Police Chief J.L. Ray, the two officers and municipal judge Spencer.

Ray and Spencer had already used the local “breach of peace” law to arrest, fine and imprison more than 300 Freedom Riders prior to this incident.

Eight of the nine justices agreed with the Court of Appeals; the municipal judge had absolute immunity from liability for damages, and the KKK Act would not apply to judges. They ruled that police officers would not have absolute or even unqualified immunity from liability or damages. However, the police officers, they found, would be excused if “acting under a statute that they reasonably believed to be valid but that was later held unconstitutional.” The only justice to dissent from the finding was Justice William O. Douglas, who disagreed with the ruling that the judiciary had absolute immunity under the KKK Act. The law was amended in 1996 to protect judges from liability. This kind of lawsuit against a state government official is known as a “Section 1983” lawsuit.

Marti Crow is a Leavenworth Times columnist.