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Rooted In Racism: The Origins Of Qualified Immunity

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Qualified immunity, entwined with the U.S. history of racism and the struggle against it, emerged during the civil rights movement.

Throughout 1961, groups of activists known as Freedom Riders challenged segregation in interstate public transit stations in the South. The Supreme Court had outlawed such segregation in a ruling the previous year, but local police still arrested hundreds of protesters who descended on the South to enter “whites only” or “colored only” areas of bus and train stations.

With that backdrop, the Rev. Robert L. Pierson, a white Episcopal priest, and 14 other priests, both Black and white, knew they were risking arrest or worse when they boarded a bus on Sept. 12, 1961, on what they called a “Prayer Pilgrimage.” In less than 48 hours, when the group entered a “whites only” area of a bus terminal in Jackson, Mississippi, for lunch, all 15 were arrested and jailed for breach of peace.

A local judge sentenced the priests to the maximum four months in jail, plus a $200 fine each. The charges were dismissed on appeal. The priests then turned around and sued the police under Section 1983 of the Ku Klux Klan Act for violating their civil rights through unlawful arrest. The act is one of three laws passed in the early 1870s to protect Black people from civil rights violations.

After a jury decided against the priests, they appealed to the New Orleans-based 5th Circuit Court of Appeals. That court identified errors in the trial and ordered that a new one be held. The 5th Circuit also ruled that the police were not immune from the federal lawsuit, a conclusion that the officers appealed to the Supreme Court.

But on April 11, 1967, the justices dealt a blow to Pierson and other plaintiffs who would file similar civil lawsuits in the decades to come. Warren wrote in his opinion that, while police are not entitled to “absolute and unqualified immunity,” officers should not be held liable “if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid.”

The officers had argued that they believed arresting the priests for breach of peace was justifiable because the aim was to prevent violence. If this were the case, the Supreme Court ruled, the officers deserved immunity. The priests had argued that the officers’ intent was not to prevent violence, but to enforce segregation, in violation of the priests’ constitutional rights.

Warren’s idea that officers acting in “good faith” should not be held accountable for federal civil rights violations laid the groundwork for today’s interpretation of qualified immunity for police. The concept evolved as the courts worked to develop an objective test for whether an officer acted reasonably. Today, even if officers are found to have violated a person’s rights, judges must grant immunity if they find no clear precedent putting officers on notice that their actions were out of line.

The Pierson ruling was a departure from the Warren Court’s progressive rulings on civil rights. Just months later, the court found that laws banning interracial marriage were illegal in Loving v. Virginia.

“It is a fascinating part of the story that even the court considered the most protective of Black people would introduce this doctrine,” Scott Michelman, a lawyer with the American Civil Liberties Union in Washington, D.C., said. “That says to me something very powerful about the institutional culture not just of the police but of courts, the exalted place that police have held in the national consciousness.”

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