Qualified immunity is a judicial doctrine, a policy turned into law, not by any vote in a legislature, but by judges’ decisions in court. In fact, you can make an argument that “qualified immunity” as the courts have interpreted it has turned the actual law behind it on its head.
The doctrine that protects public employees, including law enforcement officials, from liability for actions taken while doing their jobs, even if they knowingly break the law and deprive someone of their Constitutional rights, was derived from legal arguments over The Civil Rights Act of 1871, which said the opposite: that acting in the name of the state was no shield from legal accountability.
“Every person [acting in the name of the law],” the 1871 law states, who, “subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”
The reason President Ulysses S. Grant asked for this law was to protect African-American citizens being bullied, for example, to keep them from voting in the post-Civil War South by letting them sue the local sheriffs or state election officials responsible.
The Civil Rights Act of 1871 also is known by two other names — The Enforcement Act and the Ku Klux Klan Act because it empowered the president to crack down on White Power enemies of Constitutional rights for Black Americans, using federal force and, occasionally, the suspension of habeas corpus. Strong medicine, but it worked, crushing the Klan into insignificance for 30 years.
So how did a law designed to protect the rights of citizens to sue when agents of government deprive them of their Constitutional rights get turned into a doctrine that deprives citizens of that very right — to sue officers of the law for actions which abuse them and their Constitution?
Damaso Reyes is a Media and Information Literacy expert as well as an independent journalist. He trains educators and journalists around the world to empower their students and audiences with the skills they need to be engaged digital citizens.
He has also been an independent storyteller for more than twenty years. He has worked for institutions and his work has appeared in publications including: The Associated Press, The Wall Street Journal, The San Francisco Chronicle, The Far Eastern Economic Review, New York magazine, Vanity Fair Germany, Der Spiegel and Time Asia. Previous assignments and projects have taken him to countries including Rwanda, Iraq, Indonesia, Tanzania and throughout the United States. His images are also featured in the monograph Black: A Celebration of a Culture and the book Innocents Lost: When Child Soldiers go to War. He is the recipient of several awards and fellowships including a Fulbright and Arthur F. Burns Fellowship and two first place awards for international reporting from the New York Association of Black Journalists.
He is also a fellow at the World Policy Institute in New York, focusing on the European Union and migrations issues.