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Judge Unleashes Rhetorical Devastation On Qualified Immunity, Then Grants Qualified Immunity

Absolutely devastating critique.

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Judge Carlton Reeves of the Southern District of Mississippi didn’t have a lot of leeway under the law of the Fifth Circuit. The Fourth Circuit may have recently raised concerns over the gradual transition of “qualified immunity” to de facto absolute immunity for law enforcement, but that’s not something Judge Reeves gets to work with.

Instead, Judge Reeves wrote a sprawling 72-page opinion granting a police officer’s motion for qualified immunity while eviscerating the modern monstrosity of a legal doctrine that makes a mockery of the criminal procedure. The officer in Jamison v. McClendon pulled over a black man driving in Mississippi and subjected him to a lengthy intrusion.

Clarence Jamison wasn’t jaywalking.
He wasn’t outside playing with a toy gun.
He didn’t look like a “suspicious person.”
He wasn’t suspected of “selling loose, untaxed cigarettes.”
He wasn’t suspected of passing a counterfeit $20 bill.
He didn’t look like anyone suspected of a crime.
He wasn’t mentally ill and in need of help.
He wasn’t assisting an autistic patient who had wandered away from a group home.
He wasn’t walking home from an after-school job.
He wasn’t walking back from a restaurant.
He wasn’t hanging out on a college campus.
He wasn’t standing outside of his apartment.
He wasn’t inside his apartment eating ice cream.
He wasn’t sleeping in his bed.
He wasn’t sleeping in his car.
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.

And time and time again, Judge Reeves explains, courts let cases like these go based on a reading of qualified immunity that sets the bar so high that it is all but impossible to hold law enforcement accountable for illegal acts. Judges constantly complain about this but no one seems willing to do anything about it. Worse, the doctrine pins the victim of abuse with locating precedent backing them on point when courts are producing less. Reeves quotes Judge Don Willett, “Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.”

With the obligatory quip about the current Supreme Court’s hostility to established precedent in cases like Janus, Judge Reeves basically pleads for appellate judges to step back from this doctrinal nightmare and recognize that qualified immunity is destroying straightforward legal protections.

…judges took a Reconstruction-era statute designed to protect people from the government, added in some “legalistic argle-bargle,” and turned the statute on its head to protect the government from the people. We read § 1983 against a background of robust immunity instead of the background of a robust Seventh Amendment. Then we added one judge-made barrier after another. Every hour we spend in a § 1981 case trying to parse “temporal proximity” is a distraction from the point of the statute: to determine if there was unlawful discrimination. Just as 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.

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Where are the textualists and originalists when you need them? Because we have a pretty good example right here for judicially manufactured interpretive noise clouding a plainly worded statute that was commonly understood at the time of drafting to be about preventing exactly the kind of stop in this case.

Maybe the Supreme Court will step in and resolve this… oh, wait, no.

(You should seriously check out the full opinion on the next page.)

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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