Correcting Police Immunity -from-Prosecution in Civil Rights Abuses

Since 1871, the Civil Rights Act, U.S. Code 42, Section 1983 makes [police] officers [among others] liable for deprivation of any rights, privileges, or immunities secured by the Constitution and laws, …liable to the party injured in an action at law, Suit in Equity, or other proper proceeding for redress.  This law is applicable in all the states, territories and the District of Columbia, and is still in effect.  But, it has been neutered by federal court decisions permitting government officials (police officers) to act more independently in serving the public interest without fear of consequences.  The Supreme Court then in Pierson v. Ray, 386 U.S. 547, 554 (1967) said that the rights violated must be “clearly established” for a lawsuit to proceed.  More than thirty police-abuse cases have since been overturned by the Supreme Court, and only two such cases were upheld.  How that has come about is explained below.  

The court’s holdings are based on two ancient legal doctrines; stare decisis, the doctrine of precedent of prior case law and qualified immunity, the doctrine of partial immunity for certain persons from prosecution.  Stare decisis goes back in time to the year 1189, the date of origin given to the Common Law Courts in England.  Common law courts were established in cities and merchant towns to serve local needs.  Each common-law judge had no statutory law for making decisions.  Rather, the judge was to use common sense if the present case was original, and if there was a similar preceding case, to follow the decision of it. If the facts are new or different from any previous case, the judge must apply common sense and fashion a new result; which may become precedent for future cases having similar facts.    Stare decisisis Latin and means “let the decision stand.”  Stare decisis is still good law in the United States.  

The doctrine of immunity comes from statutory law in England.  Originally the King made the law by informing his minister what he wanted and the minister published it as the law of the realm.  Since the King made the law, he was above it.  He could do no wrong, as the saying goes.  It then followed that the state had equal immunity as well. The U.S Constitution does not disturb State Immunity obtained from the King prior to the Revolutionary War and the Eleventh Amendment.  Sovereign states are immune from being sued; they would not be “sovereign” if not immune.  This was contentious in debates on the Constitution in 1787 because the federal structure of the government gives the appearance of shared sovereignty – Shared sovereignty is no sovereignty, so said some founders.  No sovereignty leads to no immunity.  Not so, as the Constitution places a state’s sovereignty only upon its defined powers. So long as the federal government and none of the states share the same power, their sovereignties are separate. Federal and State governments may vest qualified immunity in its officers, judges, ministers and legislators when they carry out duties assigned to their responsibility.  An officer of the state can’t be sued, particularly in tort (civil rights) if his actions are reasonable and within his authority.  If a suit is filed and qualified immunity applies and is plead, the court is obligated to dismiss the charge. 

So now that the genie is out of the bottle so to speak, and the police in some states have run amuck causing injury to citizens how is it to be repaired.  First, the State of Minnesota has charged the four rogue police officers alleged to have murdered George Floyd with felonies; their immunities appear to have been pierced by these higher charges, not civil rights charges.  However, less-than criminal injuries need repairing.  It will be up to the Supreme Court to restore the Civil Rights Act of 1871 to its former status, or with some more reasonable interpretation thereof.  The table has been set for the Court to do so, considering the following factors.  The Court has already collected five cases involving stare decisis precedent on qualified immunity.  The court might overturn one or more of those cases and write a new precedent for the future. Two Supreme Court justices, Thomas and Sotomayor, say the precedent doctrine of “clearly established” law is not fairly grounded in Constitutional and common law.  There is support from academia on all sides of the issue for the Court to overturn stare decisis in Pierson v. Ray.  Finally, public confidence in the Court would be improved by uniting local police and the public’s interest in accordance with the public’s expectations.  I believe the Court will take this up in its next term beginning in October.                                                                                       June 10, 2020