{"id":1288,"date":"2020-06-08T14:20:22","date_gmt":"2020-06-08T21:20:22","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=1288"},"modified":"2020-06-09T16:50:36","modified_gmt":"2020-06-09T23:50:36","slug":"the-dastardly-origins-of-qualified-immunity","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=1288","title":{"rendered":"The Dastardly Origins of Qualified Immunity"},"content":{"rendered":"

Hard core libertarian groups are on a tear these days about the possibility that the Supreme Court might abolish or at least limit the doctrine of qualified immunity, which they view as a grossly unacceptable impediment to holding vicious police officers accountable for their behavior.\u00a0 But the doctrine has its beginnings in a source not known for bending over backwards with sympathy for the police.<\/p>\n

The particular source I have in mind is\u00a0 —\u00a0 ready now?\u00a0 —\u00a0 Earl Warren, writing for a unanimous Court in a case from the late Sixties.<\/p>\n

Legal scholar Ed Whelan has the story<\/a>:<\/p>\n

\n

I was surprised to learn that the rule that police officers enjoy so-called qualified immunity from damages suits brought under federal civil rights law (42 U.S.C. \u00a7 1983) was established by a unanimous* opinion written by the very liberal Chief Justice Earl Warren in\u00a0Pierson v. Ray<\/a><\/em>\u00a0in 1967 in a case involving civil-rights abuses in the Deep South.<\/p>\n

The case arose from an incident in 1961 in Jackson, Mississippi, in which members of a group of 15 white and African-American clergymen attempted to use a \u201cWhite Only\u201d waiting room in a bus terminal. City police arrested the clergymen and charged them with conduct breaching the peace. All 15 clergymen were convicted and given the maximum sentence of four months in jail and a fine of $200, but the charges were dropped on appeal. (In 1965, the Court ruled that the statute under which the clergymen was convicted was unconstitutional.)<\/p>\n

Some of the clergymen sued the individual police officers for damages under section 1983 and under common law. One of the questions the Court faced in\u00a0Pierson<\/em>\u00a0was whether the police officers could assert a defense of good faith and probable cause (on the contested proposition that they acted to prevent imminent violence). The Court held that they could. It first ruled that that defense was available under common law:<\/p>\n

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is, rather, that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts \u00a7 121 (1965); 1 Harper & James, The Law of Torts \u00a7 3.18, at 277-278 (1956);\u00a0Ward v. Fidelity & Deposit Co. of Maryland,<\/em>\u00a0179 F.2d 327 (C.A. 8th Cir. 1950).\u00a0A policeman\u2019s 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 damages if he does<\/u>. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied. [Underlining added.]<\/p><\/blockquote>\n

The Court then held that the same defense of qualified immunity should apply under section 1983. It set forth its reasoning in two sentences:<\/p>\n

As we [said in\u00a0Monroe v. Pape<\/em>\u00a0(1961)], \u00a7 1983 \u201cshould be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.\u201d Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.<\/p><\/blockquote>\n

Thus, \u201cif the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow\u00a0even though the arrest was, in fact, unconstitutional<\/em>.\u201d (Emphasis added.)<\/p>\n<\/blockquote>\n

With his characteristic honesty, however, Ed adds a needed note of caution:<\/p>\n

\n

As, alas, is all too common for Warren Court opinions\u2014especially in the field of criminal law\u2014these breezy assertions don\u2019t have much persuasive force. Law professor Will Baude argues (in \u201cIs Qualified Immunity Unlawful?<\/a>\u201d) that the Court\u2019s claim regarding a background common-law immunity \u201cdoes not withstand historical scrutiny.\u201d The sentence I\u2019ve underlined also seems to ignore a basic economic reality: If police officers are going to face liability for damages, a city that wants to hire and retain them is going to have to commit to indemnify them or to find some other way to compensate them for the risk (e.g., higher pay sufficient to cover liability insurance), at least for instances in which the officers haven\u2019t engaged in flagrant misconduct.<\/p>\n

I wonder whether some of Warren\u2019s concern for the plight of police officers reflected his recognition that his Court was changing the constitutional rules so quickly and unpredictably that police officers couldn\u2019t possibly anticipate the rules that would be applied retroactively to their conduct. As Warren\u2019s opinion states, \u201cWe agree that a police officer is not charged with predicting the future course of constitutional law.\u201d<\/p>\n<\/blockquote>\n

* Justice Douglas dissented from the Court\u2019s separate holding that judges are entitled to absolute immunity.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Hard core libertarian groups are on a tear these days about the possibility that the Supreme Court might abolish or at least limit the doctrine of qualified immunity, which they view as a grossly unacceptable impediment to holding vicious police officers accountable for their behavior.\u00a0 But the doctrine has its beginnings in a source not known for bending over backwards with sympathy for the police.<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[36],"tags":[],"class_list":["post-1288","post","type-post","status-publish","format-standard","hentry","category-news-scan"],"yoast_head":"\nThe Dastardly Origins of Qualified Immunity - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=1288\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Dastardly Origins of Qualified Immunity - 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