Jackson, Mississippi, is no stranger to the doctrine of qualified immunity, which immunizes state and local officials from most federal civil rights lawsuits. Its origins can be traced back to the 1967 case Pierson v. Ray, where the Supreme Court established it in ruling against a group of priests who sued Jackson police officers who had arrested them on spurious grounds at a civil rights protest.
Fifty-seven years later, Jackson is once again playing a major role in the nation’s ongoing debate over qualified immunity, thanks to a federal judge who last week sharply criticized the doctrine and the Supreme Court for allowing it to endure. While an ideologically diverse group of legal scholars and judges have criticized qualified immunity in recent years, few have done so as forcefully or as defiantly as Judge Carlton Reeves.
“Desmond Green has suffered two injustices,” he wrote, referring to the plaintiff’s mistaken arrest and unjustified, yearslong detention. Then, referring to Green’s lawsuit against the police, who are claiming immunity for their behavior in the case, Reeves added, “The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end.”
Like many qualified immunity cases, this one began with an arrest. Jackson police apprehended a man named Samuel Jennings for burglary and grand larceny in 2020. During an interview with Detective Jacquelyn Thomas, Jennings claimed that he knew who had shot and killed a local man named Nicholas Robinson two months earlier. He ultimately wrote a statement claiming that Green had confessed to him “out loud” that he had killed Robinson. Using that statement, local police arrested Green and charged him with first-degree murder for Robinson’s death, which carries a potential death sentence.
Green vociferously maintained his innocence. He told investigators that he didn’t murder or even know Robinson. (It is unclear from court filings how Jennings knew Green.) While he fought the case, Green was detained in a local jail in squalid conditions. “He remained there, awaiting trial, in an ‘inhumane’ facility he claims was infested with rodents and snakes, where his cellmate was stabbed, where his food was ‘moldy and stale, where he often had to sleep on the cell floor, and where he lived amidst constant violence, yelling, fighting, and fear,’” Reeves wrote.
Only in 2022 did Jennings finally recant his story. He told officers that he had taken “one and a half shots” of methamphetamine before making the allegations and that he had accused Green out of pure self-interest. “I was just high and try [sic] to help myself get out of jail,” Jennings claimed in a written statement. He also claimed that he had no idea who had killed Robinson and that he himself had been hospitalized for unspecified mental disorders when the murder had occurred.
Local prosecutors dismissed the case soon thereafter, and Green walked free roughly two years after his original arrest. Last year, he sued Thomas, the city of Jackson, Mississippi, as her employer, and Hinds County for the conditions of his detention in federal court. Thomas filed a motion to dismiss the case, invoking qualified immunity. (The city and the county also filed similar motions, but Reeves will rule on them separately.) She argued that she was not liable for Green’s travails since he had been indicted by a grand jury. While Thomas did not deny that she had presented evidence to the grand jury, she noted that Green could not prove it because those proceedings are secret.
At the heart of Green’s case is what is known as a Section 1983 claim. That provision in federal law allows people to sue state and local officials for violating their federal constitutional rights. Congress enacted it as part of the Ku Klux Klan Act of 1871, which is also known as the Enforcement Act, to protect the civil rights of Black Southerners during Reconstruction. Section 1983 cases underwent a revival of sorts in the 1950s and 1960s, only to find themselves curtailed again by the court in Pierson.
Reeves wrote that it was “difficult to see qualified immunity’s creation as anything other than a backlash to the civil rights movement,” given the historical context. “The justices took a law meant to protect freed people exercising their federal rights in Southern states after the Civil War, then flipped its meaning,” he noted. “In creating qualified immunity, the high court protected the Southern officials still violating those federal rights 100 years after the war ended. Southern trees bear strange fruit, indeed.”
The Supreme Court’s current articulation of qualified immunity hinges on whether a police officer violated a “clearly established right.” This is more bizarre in practice than it sounds in theory. What counts as “clearly established”? In many cases, it means that a federal appeals court previously ruled that the officer’s specific acts violated some part of the Constitution. But lower courts often take an extremely narrow view of whether an act was “clearly established,” and appellate courts aren’t obligated to “clearly establish” it for future cases, either.
Reeves noted that this requirement is “unusual in the law” and that no other claims require it. “If a surgeon accidentally leaves a sponge in your abdomen before stitching you up, you do not have to point to an existing appellate decision ‘clearly establishing’ his error before proceeding with your claim,” he observed. “You simply state the facts and explain that the surgeon’s conduct fell below the standard of care.”
To highlight its absurdity, he pointed to a number of surprising instances in other courts where misconduct wasn’t “clearly established.” The Ninth Circuit once ruled, for example, that officers who stole a $225,000 rare coin collection “did not have clear notice that it violated the Fourth Amendment,” essentially ruling that committing the crime of theft did not violate the victim’s rights. The Fifth Circuit held that it was OK to keep a prisoner “in a frigid cell” where he was “covered in other persons’ feces and forced to sleep naked in sewage” for six days because the “clearly established” precedent only barred it for “months.” In another case, a court held that it was not “clearly established” that prison guards who watched a mentally unstable inmate hang himself should have called for paramedics.
I could list more examples, and so could Reeves, but you probably get the point by now. “[Qualified immunity] discourages victims of misconduct from bringing lawsuits, and those who do file suit sometimes recover nothing because of it,” he wrote. “Qualified immunity accomplishes this by preventing victims of government misconduct from using the discovery tools available to other litigants.” He also noted the obvious effects it had on racial inequality, since Black defendants are statistically more likely to face interactions with law enforcement than other Americans.
Reeves, as a federal district court judge, is not free to simply ignore Supreme Court precedent. But he denied qualified immunity to Thomas all the same. He sided with Green on every portion of his claim, rejecting even some plausible defenses that Thomas had raised. When courts consider a defendant’s motion to dismiss, they typically assume that the plaintiff’s allegations are true and interpret any factual disputes in the plaintiff’s favor. The reasoning for this is simple: If a case can’t survive under even the friendliest circumstances, then it shouldn’t.
Reeves leaned heavily on this principle to allow the malicious prosecution and false arrest claims to go forward. He also used to it defeat Thomas’s insistence that the grand jury’s involvement made her less liable for what happened. Reeves noted that, as alleged by Green, the officer had not told the grand jury that the jailhouse informant had serious credibility issues or that they had contradictory evidence about Robinson’s death. “Had she provided the grand jury with full and complete information, Green alleges, he would not have been indicted,” the judge concluded.
Reeves also took aim at some occasional defenses made of the Supreme Court’s current approach to qualified immunity. He rejected an assertion made by the court in 2018 that it was Congress’s responsibility to address the issue, noting that qualified immunity was a creature of the federal courts’ own making. “Qualified immunity does not appear in the text of the Ku Klux Klan Act,” he observed, quoting from precedent. “It is not found in any constitutional provision or other statute. Nor does it ‘help give life and substance’ to the ‘specific guarantees in the Bill of Rights.’ The defense has the opposite effect. It nullifies the guarantees of the Bill of Rights.”
At one point, he also criticized the Supreme Court for its inaction on qualified immunity by pointing to how it abolished a constitutional right to obtain an abortion in Dobbs v. Jackson Women’s Health Organization. As its name suggests, that case also involved Jackson, Mississippi. Reeves had been the trial judge in the case and ruled in favor of the clinic challenging the state’s restrictions.
On appeal, the Supreme Court ruled in favor of the state instead and overturned Roe v. Wade along the way. Reeves noted that qualified immunity opponents and anti-abortion opponents had made similar arguments: The latter had alleged that previous generations of justices had created an atextual rule though “raw judicial power” and had “short-circuited the democratic process” along the way. “The arguments against qualified immunity are stronger than the arguments [Mississippi] presented in Dobbs,” he concluded.
While this type of direct criticism is somewhat unusual for a federal judge, it is pretty standard for Reeves. Over the last few years, he has pointedly criticized the court on other issues, notably in Second Amendment cases. In a 2022 case, he applied the court’s new history-and-tradition text while adding that neither he nor the justices are “trained historians.” Last summer, at a later stage of the case’s proceedings, he aired his concerns about originalism and its role as “the dominant mode of constitutional interpretation” nowadays. “This court is not so sure it should be,” Reeves wrote, referring to himself.
Thomas will undoubtedly appeal the ruling to the Eleventh Circuit, which may take a different view of things. Even if the appeals courts overturn Reeves’s ruling, however, they can’t stop him from pointing out qualified immunity’s deep and inextricable flaws. Nor can they reverse the growing chorus of calls for the Supreme Court to rethink the matter. As Reeves pointedly observed, it is a problem that only they can truly solve.
