Unpacking Immunity

The defiance shown by so many police officers to vaccine mandates absolutely astonishes me, as I’ve previously posted. These are, after all, people whose job it is to enforce “mandates” over the “personal choices” of citizens whose disagreement with those mandates is irrelevant.

But then I read a very informative column by Radley Balko in The Washington Post and connected some (admittedly non-intuitive) dots.

The column was about qualified immunity–the judge-made doctrine that continues to exempt police officers from the consequences of unconstitutional behaviors, and essentially allows them to choose which laws they will follow and which they will ignore. I have previously explained that doctrine, and why so many lawyers argue that its effects have been pernicious. Balko goes beyond the widespread criticism of the way qualified immunity currently works; he explains its ugly origins.

I, for one, was unaware of those origins.

Balko begins by reminding us that qualified immunity isn’t in the Constitution or in the U.S. Code. “It is judge-made law. It is judicial activism, by any definition of the term.” The doctrine was first announced in Pierson v. Ray, a case arising out of participation by a group of Episcopal priests–three of whom were Black–in the effort to desegregate public accommodations in the South.

Waiting on a bus just outside of Jackson, Miss., 15 of the priests, three of whom were Black, entered a segregated cafe. Two police officers ordered them to leave. When they refused, the officers arrested them under a vague Mississippi law permitting police to arrest any group of people who threatens a “breach of the peace.” The clergymen were convicted and sentenced to four months in jail. On appeal, their arrests were deemed illegal and their convictions were overturned. They subsequently sued under Section 1983.

Section 1983 is the federal statute allowing citizens to sue the government for damages when agents of that government, acting in their official capacities, violate their rights.

This was the precise sort of constitutional violation that Section 1983 was passed to address. Local state authorities had refused to recognize the 14th Amendment rights of Black priests to be treated equally. And yet they lost.

The U.S. Court of Appeals for the Fifth Circuit ruled that by merely participating in the Freedom Rides, the clergymen had knowingly placed themselves in harm’s way, and therefore were ineligible for damages. The court also ruled that though the arrests and law were subsequently determined to be unconstitutional, the police could not have known that at the time, and therefore couldn’t be held liable.

In 1967, the Supreme Court upheld the decision, and in 1982, in the case of Harlow v. Fitzgerald, the Court made the doctrine even worse. As I explained in my former post on the subject, the Court in Harlow ignored precedents that had required an examination of the “subjective good faith” of the officer being sued. Instead, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”

In other words, since Harlow, courts have required plaintiffs to cite to an already existing judicial decision with substantially similar facts. As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’”

As Balko (accurately) characterized the current situation,

Collectively, they’ve created a through-the-looking-glass realm of jurisprudence that not only excuses police violations of constitutional rights, not only grants a police an exception to the axiom that “ignorance of the law is no excuse,” but actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

Which brings me back to the chutzpah of the police who are refusing vaccination.

When you are working in an environment that shelters you from the consequences when you break the rules, an environment that allows you to decide for yourself which laws you will follow and which ones you will ignore, the result is development of an entitlement mentality. When you are insulated–immunized–from the consequences that ordinary citizens face when they ignore laws of general application, why wouldn’t you get cocky? Why wouldn’t you consider yourself immune from the rules that the “little people” must follow?

Qualified immunity explains a lot more than the evisceration of Section 1983.


  1. Not just “cocky” because many of them are racists as well. They know they can shoot a person of color and be protected. What a great job!

    Now you know why the people advocating to defund the police are serious about it and why people of color fear for their life when they encounter the police. It also makes you wonder why the first black POTUS came out against BLM for using that phrase. Of all people, Barack should know why they want to defund the police, but he turned his back on his own people.

    He’s done that often and will continue doing that because he is a complete sellout. Many people on Twitter have already figured out the Obama’s.

    In Minnesota, where George Floyd was murdered, a bill or law is present that will eliminate the entire police department and replace it with a public safety department. There are media outlets calling it a “live test case” but I think anybody with sense can project how well this will work out because cops didn’t prevent crime. They are purely reactionary.

    Let academia study it though for ten years while racist cops keep killing people of color and abusing their power across the nation. 😉

  2. The police serve an important role – both – for “themselves” – as well as for the right/Republicans and to a lesser degree the “middle” – Democrats and similar. Police culture – maximizes both racist potential as well as male privilege – both existing with BIPOC and Female police officers. With a minimal effort at allowing the police to deal with the legitimate traumas of their jobs, it is quite natural to end up in an “us vs. them” – mindset. Systemic – brutalization of BIPOC communities as well as fearing of Queer/Trans People and others who are “different”. Police unions – leadership – play on both the fears of some of their membership – as well as the fears of the public – the “poor white folks” – particularly – us men – who are losing power and influence. A total failure to see how we are easily pawns for wealthy elites – and scapegoats – for the real societal changes of diversity – and global capitalism – feeds into resistance on Covid -symbolism galore- for the police and for those – who defend them – Dog Whistle Politics – the worshiping of the Donald etc.

  3. Too many policemen and women are thuggish bullies, but IMHO it’s those who stand by and watch and neither say nor do anything about the bullies are the biggest problem we have in policing. If the bad officers are “just a few bad apples” what are those who, by their silence, give consent?

  4. Totally agree with Peggy Hannon, too many officers are racially prejudiced. Look at how many departments in cities with high population of POC, have had incidents with killings of POC by officers. The southern states in smaller communities seem to have a huge problem with racism, so have they never given up the “civil war” mentality, that slaves were property, that Black people don’t matter?

    We truly don’t need to defund police departments or definitely not give them immunity , but we certainly need to require diversity training in all cities, towns and states. We also need to require some crisis prevention training as well, so that the officers know HOW to deflate incidents before guns need to be used.

  5. One thing about authoritarians is that they feel free to tell others what to do but may elect not to do the same thing under similar circumstances. In nonlegal affairs, they can and do hide behind the concept of “judgment” to justify this behavior. They believe that some of their authority comes from birthright superiority.

  6. I thought the SPOTUS had killed qualified immunity, but, I must be wrong. I have watched numerous arrest videos where people’s 4th and 1st amendment rights were clearly violated because the officers did not know the laws they are charged to enforce. As long as the activist, right wing SPOTUS remains intact, I don’t see things getting better anytime soon.

  7. Right off hand, does anyone know if the 5th Circuit Court of Appeals in 1963 was as bent to the right as today’s 5th Circuit is?

  8. I am an opponent of qualified immunity, whether judge-made or statutory. Before the merger of law and equity judges and chancellors had already announced that where there was no remedy the courts would fashion one. Apparently the courts via Sheila’s references perceived that there needed to be a remedy to protect police officers from suit in the performance of their duties; hence this concept of qualified immunity, which may have made such suits difficult to withstand motion but which also gave a green light to some police to rough up the citizens they were sworn to protect and defend.

    Perhaps we don’t need to abolish police departments. Perhaps it would be enough to end or narrowly define qualified immunity and redefine what the police are charged to do, some of which belongs to psychologists and other experts on call rather than or along with unqualified police where public safety is involved.

    I like George Marx’s analysis and conclusions.

  9. Mike: The 5th Circuit has a “conservative” reputation and the 9th Circuit (to which I was admitted) has a “liberal” reputation, but like beauty, such reputation(s) are in the eyes of the beholders, who may have differing standards for measurements. Take my eye, for instance. I was admitted to the Supreme Court but resigned after Bush v. Gore, noting in my resignation letter to the clerk that I did not wish to be a member of the bar of a court that itself acted unconstitutionally.

  10. As if marginalized communities had to have another very good reason to distrust law enforcement, the refusal to get vaccinated against a virus that is virulent and much more readily spread makes those of us who had doubts about the biases of those in that profession have an even more hesitancy to trust when encountering them.
    I watch law enforcement with a jaundiced eye, knowing some myself who display all the hallmarks of authoritarian bullying in their private lives. Even as a kid, I understood how contrary the directions to “do as I say, not as I do” were.

  11. Thanks for your response, Mr Stinson. I was shocked by Ms Kennedy’s admission she once headed ACLU. I have managed to find other Republicans who have acute social consciences. All hope is not lost, for now.

    Ms Kennedy, no offense meat about heading the ACLU, I just have a hard time forgetting how reviled the ACLU was back in Raygun/Bush years by just about every Repub pol in America. So were defense lawyers reviled.

  12. I understand the laws and court decisions mentioned in the article. But putting aside “knowledge” of the issue – – my gut feeling about officers not wanting to get a vaccine is: “Waah, waah, waah. Get some backbone and get the jab and stop endangering people and yourself by not getting vaccinated!” That’s life ! Why do I feel like everyone’s mom? Could it be that childish, stubborn behavior exhibited by adults brings out the “mom” in me?

    I greatly enjoyed all the comments by your readers.

  13. As an active member of the ACLU since 1967, when they came to my aid in Spokane, home of the John Birch Society, and where I co-founded an active First Amendment “underground” newspaper, I’ve been following the First Amendment Audit movement on YouTube for about three years.
    What is that?
    Well, you go into a Public Place, or stand on a public sidewalk, and obviously take video with your camera, an action constitutionally protected.
    Someone will almost always call the police, usually after coming up and telling you that you can’t do that. When the police come, they will tell you to move on.
    When you explain the law, which is quite clear, they’ll then switch to “I need your ID to file my report.” When you, legally in most states, refuse, they start the intimidation and fishing routines. Sometimes you get arrested, sometimes not.
    Arrests can be quite costly for the jurisdiction. But not for the cops themselves.
    Qualified immunity, which can be lost by KNOWINGLY violating constitutional rights.
    I’ve watched maybe five hundred of these typically half-hour videos, which the Youtube algorithm shovels into my choices. The most annoying thing is the smirks on the faces of the typically 5-10 officers called for “backup.”
    There are barrels of bad apples out there, and many are repeat. offenders.

  14. Those are some of the videos I mentioned above, Mr. Otvos. Audit the Audit and the Lackluster Channel are others that do a good job of pointing out the actual laws the police and others are violating.

    I did not intend to hijack this thread. There is at least one case pending before the SPOTUS pertaining to qualified immunity for egregious acts perpetrated on civilians by LEOS.

  15. I would prefer that anyone wishing to join the police force be compelled to take an MMPI II to rule out sociopaths and people with PTSD especially if they are veterans.

    I don’t believe we should “defund the police”. I think we should fund multidisciplinary teams that are called public safety teams. These would include people skilled in mental health, child and family issues, and people skilled in deescalation especially with hostage situations or incidents of domestic violence. This would improve “community policing”.

    In the series “Call the MidWife” the nurses often problem solve with the police how to address certain community issues that arise or ways to intervene with individuals in need of help.

    A police officer’s immunity should have restrictions so that he/she does not come to believe they are above the law that they have been chosen to defend.

    I spoke earlier on the multiple factors that contribute to police brutality and stand by that.

  16. Since I am lowly educated, can someone explain why it is not acceptable that John Q Public can be ignorant of the laws when the police and others in law enforcement are?

  17. Ormond Otvos
    Your comment makes me sad.
    But thank you.
    I as an old white woman do not feel protected by officers or the Constitution.

  18. When the Trumpster disciples see sworn officers of the law refusing to comply with workplace safety rules, it only emboldens them to follow suit. What’s next–refusing to wear a hard hat on a construction site, or an ICU nurse refusing to wear gloves or to don a mask because these things are uncomfortable? Just like when they see Republicans go along with the Big Lie, order “forensic” audits of ballots that have been recounted several times, knowing that there were no irregularities–Trump stooges perceive this as validation.

    Trump is a dangerous and pernicious threat to our American way of life. He has politicized anything and everything for his own ego needs. He got trounced, so he must prevent Biden from succeeding. Trump and the Republicans know good and well that the pandemic will not be brought under control without something close to herd immunity, so they preach “individual choice” to the faithful and call into question the benefits and risk of vaccination, spreading fear and mistrust. They also spread fear and mistrust of mainstream media, the CDC and the FDA, telling the faithful that they cannot be trusted. And, it’s working. They know good and well that the economy will not fully recover until COVID is brought under better control. Because they want to hamstring Biden’s presidency, they are doing everything possible to help spread COVID, and they really don’t care who gets sick or dies as a result. It’s all about politics and retaining power, knowing that their support among the American people is dwindling, but when the police go along with it, they need to get fired ASAP. Police come into intimate contact with the public every day. The public has the right to expect that reasonable precautions for their safety from contracting infectious diseases have been taken. And, there is no reasonable basis to question either the safety or efficacy of the vaccines.

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