Controversial qualified immunity doctrine faces tests in Louisiana
In May 2020, Teliah Perkins, a Black woman, was confronted outside her home in Slidell, Louisiana, by two white deputies from the St. Tammany Parish Sheriff’s Office. After accusing Perkins of riding a motorcycle without a helmet, the officers—in an incident partially captured on video by her son—handcuffed Perkins and, she says, choked her, dug a knee into her back and threatened her son with a Taser.
“I shouldn’t have even been arrested, because I feel like I didn’t do anything wrong,” Perkins says. “I was just standing up for myself.”
Perkins, later convicted of a misdemeanor for resisting arrest, says the officers violated her and her son’s constitutional rights by treating her violently and threatening her son in an attempt to get him to stop filming. With the help of the American Civil Liberties Union of Louisiana, she filed suit in federal court.
The St. Tammany Parish Sheriff’s Office said its officers’ actions were protected by qualified immunity, a controversial doctrine that supporters say shields law enforcement agencies from frivolous lawsuits and detractors say prevents victims of misconduct from seeking justice.
In Perkins’ case, the New Orleans-based 5th U.S. Circuit Court of Appeals ruled in November in favor of the deputies, an outcome emblematic of the high bar plaintiffs in misconduct suits must meet because of qualified immunity.
The U.S. Supreme Court has recently declined to hear cases challenging qualified immunity. But legal scholars believe they’ve found inroads to challenging the judicial doctrine, including a transcription error in the text of an 1871 law.
Louisiana is becoming a proving ground for challenges to qualified immunity largely because of the American Civil Liberties Union of Louisiana’s Justice Lab project, which has filed 50 accountability lawsuits since 2020.
“It’s very difficult to even try to overcome qualified immunity and argue that there are disputed issues of material fact that need to go to a jury,” says Nora Ahmed, legal director of the ACLU of Louisiana.
It’s had some successes. In July, the 5th Circuit agreed to let the case of Bruce Washington—a Black man who says he was illegally frisked by St. Tammany Parish deputies—go to trial, rejecting a qualified immunity defense.
How the doctrine came to be
Qualified immunity has its origins in the 1967 Supreme Court ruling Pierson v. Ray, which sought to shield officers from liability for acts committed in good faith. The ruling derived immunity from common law at the time of the 1871 Ku Klux Klan Act, the nation’s foremost civil rights statute. The relevant code, 42 U.S.C. § 1983—commonly known as Section 1983—provides an avenue for victims of misconduct by state agents to seek damages.
The 1982 Harlow v. Fitzgerald decision expanded qualified immunity’s scope to take into account an officer’s intent, finding officials should be shielded from lawsuits if an action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
A 2001 ruling, Saucier v. Katz, established a two-part test to consider before allowing a case to proceed: Were a plaintiff’s constitutional rights violated? And did the officer know their conduct violated the Constitution?
Those tests have been interpreted to mean that a prior case with nearly identical facts must be found before a case can move forward.
“It’s another nonsensical aspect of the court’s doctrine,” says UCLA law professor Joanna Schwartz, who criticized the doctrine in a 2021 article in the University of Chicago Law Review and in her book, Shielded: How the Police Became Untouchable. “Officers couldn’t know if they spent 100 hours a year studying the facts and holdings of prior court cases.”
After George Floyd’s murder in 2020, there was a flurry of attention on qualified immunity, with Colorado, New Mexico and New York City passing laws limiting the doctrine. In 2022, the Nevada Supreme Court issued a ruling that limits qualified immunity.
Larry H. James, general counsel for the National Fraternal Order of Police, says governments need robust immunity to ensure difficult work by police gets done. “Is there an abuse of qualified immunity?” James asks. “Is an officer who engaged in bad conduct getting off? The general answer for the most part is no.”
James says the convictions of police officers who participated in Floyd’s murder show that the system works to bring the worst offenders to justice. James concedes his organization would be open to a less strict interpretation of the prior precedent requirement.
Ronal Serpas, former police chief of New Orleans and a professor of criminology at Loyola University New Orleans, says it shouldn’t be up to law enforcement officers to memorize case law but up to agencies to train police in constitutional duties.
“And if an employee steps outside of that, then as a pragmatic police chief, my decision is very simple: If you didn’t follow our policies and rules, you stand on your own.”
Louisiana under scrutiny
According to the ACLU of Louisiana and the Mapping Police Violence database, police in Louisiana had killed at least 242 people between 2013 and late December. Of those, 32 were deemed justified or cleared by law enforcement agencies; 13 cases involved charges; and 172 had no disposition. Of those killed, at least 50% were Black, while 33% of the state’s population is Black.
Ahmed and her team are frustrated that such statistics as well as an officer’s previous misconduct aren’t considered in deciding whether to grant qualified immunity. “It allows these officers who are engaged in misconduct to continue to stay on the force because these incidents are being viewed strictly in isolation,” Ahmed says.
The New Orleans Police Department was put under a consent decree by the U.S. Department of Justice in 2013, and the Louisiana State Police is currently under investigation by the Department of Justice for allegations of racially discriminatory policing.
Serpas takes issue with how police in his state are portrayed. “Long story short, police departments have error,” he says. “And when that error is found either through good leadership or if it’s found by others, it needs to be dealt with.”
High court weighs in
Even Supreme Court justices have expressed concerns about qualified immunity. Justice Clarence Thomas wrote a concurring opinion in the 2017 Ziglar v. Abbasi case, in which federal officials sued by men detained after the Sept. 11 attacks were gran- ted qualified immunity. Criticizing the court’s expanding definition of qua- lified immunity, which he viewed as straying from Section 1983’s intent, Thomas wrote: “In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.”
Justice Sonia Sotomayor, in a dissenting opinion in the 2018 ruling Kisela v. Hughes, which granted qualified immunity to a Tucson, Arizona, police officer who shot a woman, wrote that immunity “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Critics of the doctrine found an opening in a 2023 California Law Review article by Alexander Reinert, “Qualified Immunity’s Flawed Foundation,” which identified an error in transcription between the original Civil Rights Act of 1871 and the text entered into code in 1874. The missing text contained a provision specifying there should be no state limitations on causes of action pursued via Section 1983.
Reinert, a professor at the Benjamin N. Cardozo School of Law, says his research confirms that the Reconstruction-era Congress did not intend any sort of immunity in these lawsuits.
“If we care about it—and there are presumably some justices who care about what the 1871 Congress was trying to achieve,” Reinert says, “then the fact that this was text that was in the enacted law, that was erroneously taken out by the revisers, should matter.”
Reinert’s article was quoted in a March 2023 ruling by Judge Don R. Willett of the 5th Circuit, in which Willett granted prison employees immunity but criticized the doctrine: “What the 1871 Congress meant for state actors who violate Americans’ federal rights is not immunity, but liability—indeed, liability notwithstanding any state law to the contrary,” Willett wrote.
Ahmed says Reinert’s research is shaping arguments they’re making in cases such as Washington v. Smith. “We have a couple of examples of where we’re pushing hard to shift the tide of what the case law can look like.”
Meanwhile, Perkins, who was fired from her job because she’s been in court so many hours and who deals with chronic pain and depression as a result of her incident, was disappointed with the 5th Circuit’s ruling in her case.
“That officers don’t get punished for their misconduct is just wrong,” she says. “It feels like a slap in the face.”
This story was originally published in the February-March 2024 issue of the ABA Journal under the headline: “Challenging Qualified Immunity: The controversial doctrine shielding police officers from lawsuits faces tests in Louisiana.”
Andrew Engelson is an award-winning freelance journalist and editor who, in a career spanning more than two decades, has covered topics ranging from climate change to LGBTQ issues. His work has appeared in the Seattle Times, Super Lawyers, High Country News and many other publications. He lives in Seattle.