The Attack On Qualified Immunity: Part 2

In Part I, we examined where the House of Representatives, operating behind the shield of legislative immunity, was attempting to eliminate Qualified Immunity as a defense against civil rights lawsuits for local and federal law enforcement officers. In this part, we will explore more closely the attack on qualified immunity for law enforcement officers by judges.

 Judges wield a great deal of power and discretion in the system laid out in our Constitution, though not all of their power, such as judicial review, is spelled out precisely. From the magistrate level on up, judicial officials have great discretion in determining probable cause to issue search and arrest warrants, setting bail (if statute currently permits bail to be required), dismissing or proceeding with cases, admitting or excluding evidence, determining guilt or innocence in non-jury criminal trials, and issuing sentences for those convicted, to name just a few.

At each of junctures, there are many opportunities for a judge, operating “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia”  to subject, or cause to be subjected “any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws”, yet common law and the original statute, as well as subsequent decisions have exempted judges from such suits.

 While judges are not immune in their ministerial capacity (e.g. hiring and firing court employees), their discretionary functions remain protected by this shield. Many decisions by a judge may be subject to appeal (e.g. refusing to grant a defense request for change of venue in a highly-publicized controversial case, thus denying a defendant a fair trial), however, even where a judge is clearly wrong and violated a clearly established civil right, it may take months or even years to resolve, during which time a wrongly-convicted or incarcerated may wait in prison for a resolution to the matter. While a majority of cases are not successfully appealed, the frequency with which they are successful might seem to indicate that judges make a lot of mistakes in their discretionary functions that often lead to a deprivation of civil rights, yet they made not be held accountable through a civil suit, and where they enjoy a lifetime tenure once approved, are also not held responsible at the time of election or re-appointment.

 Still, this is what lawmakers (and judges) determined was necessary for the administration of justice, and it is the way things were and are. In the past, though, as related in Part I, judges (and more specifically, ultimately the justices of the Supreme Court), shared some of this immunity with law enforcement officers where their actions were not clearly a violation of a civil right known to be so at the time of an act. Like the current House of Representatives, some judges enjoy their own immunity, but take umbrage at the lesser qualified version.

  Democrats used the filibuster (a tool they invented during the Jim Crow era) to prevent the Senate from considering Senator Tim Scott’s police reform legislation in mid-2020 because qualified immunity for law enforcement was not eliminated in the act. Another democrat activist on the federal bench, Judge Carlton Wayne Reeves, also took issue with qualified immunity for law enforcement officers in 2020, when he issued his opinion in Clarence Jamison v. Nick McClendon (in his individual capacity)(No.3:16-CV-CWR-LRA) in August of 2020.

 From behind his own judicial immunity, the Obama appointee droned on for 72 pages injecting his thoughts on race and law enforcement, particularly when it involved the history of his fellow democrats in Mississippi and African-Americans (for those not aware, since the end of Reconstruction, Mississippi had an unbroken string of democrat governors from the 1880s until 1992, six years after Carlton Reeves received his bachelors degree from Jackson State University before graduating law school at the University of Virginia in 1989; and had no republican senators from the expiration of Senator Blanche Bruce’s term in 1881 until Thad Cochran was appointed in December of 1978).

 The controversy in question stemmed from a car stop by Deputy McClendon of a vehicle operated by Clarence Jamison due to an obscured temporary tag. According to the narrative of the case outlined in the judge’s opinion, Mr. Jamison, a welder, was traveling from a vacation in Arizona in July of 2013 on Interstate 20 to his home in South Carolina in his 2001 Mercedes Benz CLK convertible when the incident occurred. During the course of the entire event, which is described as less than two hours, there was confusion from the data center as to whether or not Mr. Jamison’s driver’s license was suspended, though it ultimately was determined during the course of the search to be valid.

Permission was requested by the deputy to search the vehicle for contraband, and was denied initially, though after multiple requests, it was granted by Mr. Jamison. Following a thorough search in which damage was done to the vehicle, no contraband was located, a canine was brought to the scene and similarly gave no indication. After being advised by Deputy McClendon that any damages to the vehicle would be paid for, the opinion states that Mr. Jamison noted none at the time, and went on his way. He subsequently made a claim for $4000 and filed a federal civil rights claim, suing the defendant in his personal capacity for violations of his civil rights under the 4^th and 14^th amendments. It is in the 14^th amendment claim where it is asserted that Clarence Jamison was stopped by Nick McClendon because he was black, though nowhere in the 72 page opinion is evidence offered that there was any racial basis for the stop.

Having occurred in 2013, most of the “racial” incidents cited by the judge (e.g.Tamir Rice, George Floyd, Eric Garner) in the opinion, had not yet taken place, and their relevance to the opinion regarding the case at hand seems to be an opportunity to provide talking points for the 2020 Democrat National Convention. It is noted late in the opinion and in the footnotes that the damage claim in general remains active, but from behind the veil of his own judicial immunity for his discretion, Carlton Reeves bemoaned the existence of qualified immunity for Nick McClendon, and gave ample evidence of his own arguably racialist motivations, for which he himself could face no accountability.

While an aphorism about pots and kettles might apply, it will be avoided here, as the Obama appointee has already played every race card in the deck of color. In the next part, we will discuss what reforms if any might increase government accountability

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