Judge Blasts Qualified Immunity As He Reluctantly Grants It 

By Y. Peter Kang | August 5, 2020, 11:05 PM EDT

A Mississippi federal judge has begrudgingly granted qualified immunity to a police officer accused of violating a Black motorist's civil rights during a traffic stop, saying the U.S. Supreme Court should reconsider the legal doctrine that serves as de facto absolute immunity for law enforcement.

U.S. District Judge Carlton W. Reeves issued an opinion on Tuesday granting qualified immunity to Nick McClendon, a white police officer accused of violating the civil rights of Clarence Jamison, a Black motorist who was driving through Mississippi on his way home to South Carolina when he was pulled over by McClendon and subjected to an allegedly unlawful search.

The suit claims that McClendon violated Jamison's Fourth Amendment rights when he stopped Jamison for a purported obscured license plate, demanded five times to be allowed to search the car for "10 kilos of cocaine" the officer lied about receiving a tip about, and unlawfully searched the vehicle, which caused $4,000 worth of damage. Jamison also claims he was stopped on the basis of his race, a violation of his 14th Amendment rights.

Judge Reeves, who is Black, said he is obligated to partially cut McClendon loose from the suit under the qualified immunity doctrine adopted by the Supreme Court in 1967.

"Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity," Judge Reeves said in a 72-page opinion.

The judge noted that the doctrine has evolved over time and its scope has expanded, via subsequent high court decisions, to the extent that it now requires a plaintiff to prove a constitutional rights violation under "clearly established" law. This means that as long as there is no precedential court decision involving the same context and conduct, an officer is immune from liability for actions on the job, according to the opinion.

The "clearly established" requirement is problematic, the judge said, and he quoted from the Fifth Circuit's 2019 ruling in a civil rights qualified immunity case called Zadeh v. Robinson .

"Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one's answered them before," the court said. "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."

The judge did find that McClendon hadn't challenged the claim over the damage he allegedly caused Jamison's car, so that claim will be moved to trial.

Judge Reeves' opinion comes amid civil unrest over police violence that has swept the nation in the wake of the police killing of George Floyd in Minneapolis.

Judge Reeves urged the Supreme Court to overturn the doctrine, saying police officers who have abused, injured or killed individuals — particularly Black people — are shielded from liability and prevented from being held accountable.

"Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise," he said. "Let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine."

The judge said just as the Supreme Court struck down the Jim Crow-era "separate but equal" doctrine in 1954, it must also overturn the qualified immunity doctrine.

"I do not envy the task before the Supreme Court," he said. "Overturning qualified immunity will undoubtedly impact our society. Yet, the status quo is extraordinary and unsustainable."

An attorney for Jamison declined to comment. An attorney for McClendon did not immediately respond to a request for comment.

Jamison is represented by Victor I. Fleitas of Victor I. Fleitas PA.

McClendon is represented by G. Todd Butler of Phelps Dunbar LLP.

The case is Jamison v. McClendon, case number 3:16-cv-00595, in the U.S. District Court for the Southern District of Mississippi.

--Editing by Adam LoBelia.

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