Opinion by Ruth Marcus
Deputy editorial page editor
U.S. District Court Judge Carlton Reeves couldn’t do justice for the plaintiff in his court, who had sued over police abuse. The Supreme Court won’t let him. So Reeves issued an opinion that dutifully followed the law — and blistered the justices for the all-but-insurmountable barrier they have constructed to shield police officers from being held to account.
Reeves, a Barack Obama nominee who sits in Jackson, Miss., and is the second Black federal judge in the history of the state, produced one of the most powerful pieces of legal writing I have encountered. His opinion is a 72-page cri de coeurdirected at the Supreme Court, arguing that it must do away with the doctrine of “qualified immunity” for law enforcement officials.
Reeves begins with the larger context. “Clarence Jamison wasn’t jaywalking.” Footnote: “That was Michael Brown,” shot by police in Ferguson, Mo. “He wasn’t outside playing with a toy gun.” Footnote: “That was 12-year-old Tamir Rice,” shot in a park by a Cleveland police officer. “He wasn’t suspected of ‘selling loose, untaxed cigarettes.’ ” Footnote: “That was Eric Garner,” the Staten Island man who died after an officer put him in a chokehold.
And on and on, for 19 excruciating footnotes, George Floyd and Philando Castile, Sandra Bland and Breonna Taylor, until we get to Jamison’s non-offense: “He didn’t make an ‘improper lane change.’ He didn’t have a broken tail light. He wasn’t driving over the speed limit. He wasn’t driving under the speed limit. No, Clarence Jamison was a Black man driving a Mercedes convertible.” In 2013, in Pelahatchie, Miss., an hour south of Philadelphia, Miss., where Andrew Goodman, Michael Schwerner and James Chaney were killed in 1964. Because his temporary tag — he had just purchased the car — was allegedly folded over.
As Reeves recounts, Jamison’s fate was less dire than that of many others: “As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him and then searching his car top to bottom for drugs. Nothing was found. Jamison isn’t a drug courier. He’s a welder.”
Jamison wasn’t shot. He wasn’t killed. But he was frightened and humiliated, and his car suffered several thousand dollars in damage to its seats and convertible top. And, as Reeves found, his constitutional rights were violated: Officer Nick McClendon’s search of Jamison’s car violated the Fourth Amendment, and Jamison’s supposed “consent” to the search could hardly be deemed voluntary.
“In an America where Black people ‘are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles,’ ” Reeves wrote, “who can say that Jamison felt free that night on the side of Interstate 20? Who can say that he felt free to say no to an armed Officer McClendon?”
But none of that mattered, which brings us to the larger context that Reeves explores: the purpose of the federal civil rights law under which Jamison sued McClendon. Its popular name tells the story: the Ku Klux Klan Act of 1871, a Reconstruction era-effort to respond to what a later court described as the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” The law, now commonly known as Section 1983, provides for damages against state officials who deprive individuals of their constitutional rights.
All good, but for the fact that the Supreme Court began to eviscerate the law more than 50 years ago. As Reeves explains, “Judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”
Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.
Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.
Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.
This cannot continue. As Reeves writes, “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.”
The judge couldn’t help Jamison. But maybe his message to his judicial bosses will help future Jamisons win the justice they deserve.