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On September 4, the 5th Circuit Court of Appeals affirmed dismissal of a lawsuit against Jackson, Mississippi, which alleged city officials knowingly let residents drink lead-contaminated water for at least six months.
The ruling said there is no “constitutional right to truthful information from officials during a public health crisis” and even if residents had established a violation of due process, city officials would still get off on qualified immunity because there is no clearly established right to be told that you were drinking lead-contaminated water.
That was the thing that made me think that I just had to address the bizarre notion of qualified immunity. So let’s do it.
Qualified immunity is described as a degree of immunity from civil liability, that is, it’s a degree of immunity against lawsuits that is granted to public officials.
The first thing to realize is that this is a legal principle, not a law or a Constitutional provision, that was created essentially out of whole cloth by the Supreme Court in 1967.
It was intended to be one of those classical “balancing acts,” in this case balancing protection of our rights against the ability of officials to do the jobs we want them to do.
But as is often true, “hard cases make bad law,” meaning that a case in which it’s found hard to find and make a fair decision is a poor guide to future cases under different conditions with different facts. Doing so often results in a standard that ossifies into a hard and fast rule that in the process of trying to be refined instead gets applied under a broader and broader range of cases.
The result here is that qualified immunity functions essentially as a “Get Out of Jail Free” card for cops who use excessive force, abuse their authority, and otherwise violate our rights and our personal dignity - even to killing people - and do it with virtual impunity.
That’s because at this point, to successfully sue a plaintiff must show that the act in question violates “clearly established statutory or constitutional rights of which a reasonable person would be aware.” So even before you get to the question of was what the official (often a cop) did reasonable, you have the barrier of “clearly established” rights. And that phrase “clearly established” is doing a heck of a lot of work here.
It has, in fact, come to mean the plaintiff must show a previous case with the same - indeed virtually identical - conditions to the one at hand where a violation of rights had been found.
To show how bad it has become, consider the case of Taylor Rogers.
In 2021, she was dropping off her child at a Santa Fe school. She mistakenly drove down a bus-only lane, apparently had some kind of panic attack, it became a thing with police, she was putting up a fuss.
She was handcuffed, thrown to the ground with her legs twisted up behind her as a cop pushed and held her face into a mound of fire ants.
Police body camera footage shows her screaming to no avail that the ants were swarming over her face. She suffered a hundred or more ant stings over her face, neck, and back.
She sued for excessive force.
On August 6, a three-judge panel of the 5th Circuit threw out the suit, ruling the cops get qualified immunity because Rogers couldn’t point to another case where a Texas cop had held a resisting suspect face-down on top of a fire ant hill - so it wasn’t “clearly established” that doing that was excessive force. Pushing her face into a fire ant hill was not excessive force.
As insane as that appears (and is), it serves to point up the fact this “Get Out of Jail Free” card for cops becomes self-perpetuating. No court has said that the action in question - and, again, it must be that particular action - has found that a violation of rights so this court can’t so there is still no court that said it’s a violation of rights.
This is absurd.
Even judges know this as they feel they have to throw out cases under qualified immunity because of the lack of prior cases even when they feel a right has been violated.
The 5th Circuit upheld qualified immunity for a cop who killed a motorist in 2016, with the judge who wrote the decision lamenting that a “routine traffic stop has again ended in the death of an unarmed black man, and again we cloak the officer with qualified immunity, shielding his liability.” But he felt constrained by previous decisions by the 5th Circuit limiting what factors the court could consider in such a case. (In January, SCOTUS agreed to take up the case, but it appears the issue would be over those limiting factors, not qualified immunity.)
Legal experts know this. The American Bar Association, in the December 2020 issue of its magazine “Insights on Law & Society,” included an article titled “Qualified immunity: An Unlawful Shield for Police Misconduct.”
Both liberals and conservatives know this.
This repeated pattern of officials getting away with abuse may be leading to a glimmer of hope.
Without going into the details of story, in 2023 a man Desmond Green in Jackson Mississippi sued a city police detective for violation of his 4th and 14th Amendment right on the grounds that the cop had engineered a false accusation leading to Robertson being in prison for nearly two years. The cop, of course, moved for qualified immunity.
In May 2024 the judge in the case, one Carlton Reeves, not only rejected the motion but wrote what one critic of qualified immunity called a ruling “breathtaking” in “its power and beauty.” In its, Reeves argues that the doctrine is “unsupportable as a matter of history, text, and policy” and calls on the Supreme Court to acknowledge its mistake and eliminate the doctrine of qualified immunity entirely.
The cop of course appealed and in March 2025 the 5th Circuit upheld the denial of qualified immunity on the claim of false arrest but allowed it - that is, allowed the cop to claim it - on Green’s claim of malicious prosecution because, it said, the constitutional tort of malicious prosecution was not clearly established in the Fifth Circuit at the time of Green’s arrest.
That is, in effect, the court said Green can’t file a claim on that basis because no previous court in the 5th Circuit has said you have a right not be the target of malicious prosecution so we won’t now - the standard qualified immunity Catch-22.
Still, upholding the denial of qualified immunity on the one claim means that if the cop till wants to avoid being held responsible for his abuses he’ll have to appeal to SCOTUS.
While the idea of this SCOTUS admitting error in its creation of qualified immunity is hard to embrace, it does seem that opposition to this doctrine with its inherent pro-power, pro-authority, pro-cop, anti-rights structure, is gaining some ground. And maybe, just maybe, they’ll listen to the growing chorus.
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