A Federal Judge Challenges the Supreme Court to Say Black Lives Matter

The opinion invokes George Floyd, Elijah McClain, Eric Garner, and other Black men killed by police.

Graffiti in in tape marks figures adorning a historic building near where protesters affiliated with Black Lives Matter (BLM) and other groups have congregated in a park outside of City Hall in Lower Manhattan on June 30, 2020 in New York City. The growing group of protesters clashed with police in the early morning hours as tensions increase ahead of a City Council vote on New York’s budget, which includes the police department budget. Similar to the Occupy Wall Street movement that took over Zuccotti Park for months, the group is now making food, medical and information stations available to assist those protesters that want to stay.  (Photo by Spencer Platt/Getty Images)
Spencer Platt/Getty Images

U.S. District Court Judge Carlton Reeves often weaves the nation’s history of discrimination into his analysis. Reeves, a Black man who writes with trenchant candor about racism in America, was appointed to the Southern District of Mississippi by President Barack Obama in 2010. His Tuesday decision in Jamison v. McClendon, however, is much more than a legal history lesson. It is a fiery protest against the injustices of racist law enforcement wrapped in a scholarly critique of the appalling doctrine that lets lawless cops off the hook. He denounced a legal system that favors unconstitutional policing over Black lives. And then he let the officer off the hook.

The doctrine of qualified immunity, which protects police officers from lawsuits over their behavior on the job, has suddenly received massive scrutiny in the wake of the police killing of George Floyd and the ensuing Black Lives Matter protests. Judges have begun to grapple with the courts’ role in expanding the doctrine and its dehumanizing consequences. Some judges are now even listening to the protests in the streets. A federal appeals court cited Floyd’s killing in a June opinion denying qualified immunity, explaining that the doctrine risks letting cops disrespect “the dignity and worth of black lives.” Reeves has now joined the chorus of judges urging the Supreme Court to acknowledge the “worth of black lives” and its complicity in using “legal jargon” to cover up systemic racism in law enforcement.

The facts in Jamison are depressingly familiar. A white Mississippi officer named Nick McClendon pulled over Clarence Jamison, a Black man driving his new Mercedes convertible. McClendon claimed that Jamison’s temporary tag was “folded up.” (Later, Jamison provided evidence that the tag was never folded.) McClendon ran a background check but found no criminal history. He then asked Jamison if he could search the Mercedes, allegedly (and falsely) accusing Jamison of carrying 10 kilograms of cocaine. Jamison initially refused the search. But after McClendon asked five times, Jamison acquiesced. The officer proceeded to dismantle Jamison’s car for nearly two hours, searching every inch and finding no contraband. In the process, he destroyed portions of the car, inflicting thousands of dollars’ worth of damage. McClendon also deployed a drug-sniffing dog, who found nothing.

Jamison then sued McClendon for violating his Fourth Amendment rights. A federal law passed in the wake of the Civil War lets individuals sue state officers who infringe on their constitutional liberties. But the Supreme Court has hobbled this law by imposing an extra-textual requirement: A victim must prove that the officer violated a “clearly established” right “beyond debate,” meaning a court has previously found that a nearly identical offense violated the Constitution. If a victim cannot meet this burden, the official receives “qualified immunity”—a shield against the lawsuit.

Reeves ruled that McClendon had flagrantly disregarded the Fourth Amendment by unlawfully coercing Jamison to consent to the search. Yet because there is no precedent “that places the Constitutional question ‘beyond debate,’” the judge held, McClendon is entitled to qualified immunity, and “Jamison’s claim cannot proceed.” Reeves pointed out that it would be “naïve” to hold otherwise, suggesting that his hands were tied by the higher courts. After all, the 5th U.S. Circuit Court of Appeals hears appeals from Reeves’ court. In 2019, the  5th Circuit granted qualified immunity to prison guards who locked an inmate in a frigid cell covered in feces, forcing him to sleep naked on the floor for six days, because an inmate’s right not to be locked in a feces-covered cell for six days was not “clearly established.”

The 5th Circuit has made clear that it believes even the most transparently abusive officer should be shielded from liability. Rather than issue a decision destined to be reversed by the 5th Circuit, Reeves placed Jamison’s ordeal in the context of Black Americans’ broader struggle for equal justice. His opinion began with a list of Black people who’ve fallen prey to that racism.

“Clarence Jamison wasn’t jaywalking,” Reeves wrote. “That was Michael Brown.”

“He wasn’t outside playing with a toy gun. That was 12-year-old Tamir Rice.”

“He didn’t look like a ‘suspicious person.’ That was Elijah McClain.”

“He wasn’t suspected of ‘selling loose, untaxed cigarettes.’ That was Eric Garner.”

“He wasn’t suspected of passing a counterfeit $20 bill. That was George Floyd.”

“He didn’t look like anyone suspected of a crime. That was Philando Castile and Tony McDade.”

And on Reeves went, citing police assaults on nearly two dozen Black people over the last few years. “Thankfully, Jamison left the stop with his life,” he noted. “Too many others have not. … Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by police.”

Reeves then embarked upon a powerful condemnation of qualified immunity. “The harm in this case to one man,” he wrote, “sheds light on the harm done to the nation by this manufactured doctrine.” He explained that, during Reconstruction, white Southerners—including law enforcement—tortured and murdered formerly enslaved people to reestablish their brutal racial caste. To end this campaign of “racial terror,” Congress passed the Ku Klux Klan Act, the basis of civil rights suits like Jamison’s. Sadly, federal courts promptly “decided to place their hand on the scale for white supremacy,” gutting the federal government’s efforts to protect black Americans from both vigilante and state-sponsored violence.

That trend continues today in the form of qualified immunity. The Supreme Court has made it almost impossible for victims of police misconduct to sue their tormentors in federal court. Federal judges were intended to be “guardians of the people’s federal rights,” yet they have transformed into enablers of system racism and abuse at the hands of the police. Reviewing recent qualified immunity decisions, Reeves noted:

Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.

With a historian’s eye, Reeves demonstrated that these decisions are not anomalies. They are part of the federal judiciary’s long, dispiriting history of “slamming shut the courthouse doors” on the most vulnerable, particularly Black Americans. The Supreme Court has corrected such injustices in the past. It outlawed school segregation in Brown v. Board of Education. And just this year, it abolished non-unanimous jury verdicts, a tradition rooted in bigotry. “Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ ” Reeves concluded, “so too should it eliminate the doctrine of qualified immunity.”

The Supreme Court declined to reconsider qualified immunity just two months ago. Opponents of the doctrine have a tortuous road ahead, but Reeves encouraged them to strike forward anyway. “As people marching in the streets remind us today, some have always stood up to face our nation’s failings,” Reeves wrote, alluding to the Black Lives Matter movement. “Through their efforts we become ever more perfect.”

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