The Qualified Immunity of Whiteness

The systemic racism in the American criminal justice system is obvious to all who care to see it. And one of its worst abuses is the policy of qualified immunity. It is not enforcement that is meant to be protected by qualified immunity; it is whiteness.

While there are tendrils of qualified immunity stretching back to the days just after the Civil War, this policy cemented a wall of protection around police forces across the county by the U.S. Supreme Court during the civil rights era.

Pierson v. Ray.

In 1956, segregated bus terminals were held to be unconstitutional. And in 1961, 15 Black and white priests, organized by the Rev. Robert L. Pierson, were arrested by local police when they entered a “whites only” section of a bus terminal in Jackson, Miss. A local judge sentenced each of the priests to the maximum four months in jail, plus a $200 fine. The charges later were dismissed on appeal. The priests then sued police Capt. J.L. Ray and two other officers under Section 1983 of the Ku Klux Klan Act for violating their constitutional rights through unlawful arrest. The suit against the police officers made its way to the U.S. Supreme Court and was decided in 1967 in the case known as Pierson v. Ray.

An unexpected outcome

Chief Justice Earl Warren stunned civil rights advocates when he wrote the opinion of the Supreme Court ruling against the priests and handing down a decision that held that while police do not have absolute and unqualified immunity, they should not be held liable when acting in good faith.

Although Chief Justice Warren had come to be viewed as a champion of civil rights for all Americans, his opinion in Pierson v. Ray poisoned the well of law enforcement for people of color from that day through the present.

In this case, the racist police officers had argued that they only arrested the priests to prevent violence, while the priests argued that the officers’ intent was solely to enforce segregation in violation of the priests’ constitutional rights. 

Good faith

Given the history of fire hoses, dogs and batons being used to abuse African Americans of their civil rights, it is incredible that the high court could have found any credence in the version of facts presented by the racist police officers, but it did. 

“Good faith” has become the “get-out-of-jail-free card” for so many vicious police officers who solemnly claim that they feared for their safety, or thought it was the best course of action to take at the time – as they stand over the body of a slain person of color.

The lack of justice in the policy of qualified immunity is glaringly obvious when a police officer of color is called to account for injuring or killing a white person.

Unqualified cases

Prior to the conviction of Minneapolis police officer Derek Chauvin for the horrendous murder of George Floyd in broad daylight and caught on cell phone video, the only Minnesota police officer to be found guilty of an on-duty killing was Mohamed Noor. Noor, who is Black, fatally shot Justine Damond, a 40-year-old white woman who had called 911 to report a possible assault of a woman in an alley behind her house. Noor testified at trial that when he and his partner arrived at the scene, he heard a loud bang against their squad car and his partner yelled, “Oh, Jesus!” Noor then testified that he then saw a blonde woman in a pink T-shirt raise her right arm outside the squad car’s open window and he then made a split-second decision to use his gun to protect his partner’s life.

No qualified immunity here. The prosecutor made a point of the victim’s blondness when arguing his case to the jury, and Mohamed Noor was sentenced to 121/2 years in prison.

In 2017, Marksville, La., Deputy Marshal Derrick Stafford was convicted in the death of a 6-year-old white boy. The boy, who was a passenger in his father’s car, was fatally shot after the father, Christopher Few, led officers on a two-mile chase. 

Stafford said he shot at the car because he feared Few was going to back up and hit Deputy Norris Greenhouse Jr. with his vehicle. Stafford said Greenhouse had stumbled and fallen to the ground as he tried to back away from Few’s car.

No immunity here. Stafford was sentenced to 40 years in prison.

Faulty standards

White fear of Blackness is a “get-out-of-jail-free card” not only for the police, but for civilians as well. In 2013, 28-year-old George Zimmerman was acquitted of murdering Trayvon Martin because the armed Zimmerman said he feared for his life during an altercation he initiated with the 17-year-old unarmed African American high school student who he had followed through his Florida neighborhood and accosted for no valid reason.

The policy of qualified immunity is a means of showing empathy for white people that is not afforded to people of color. This leads to lesser sentences for crimes or findings of innocence where there is palpable guilt.

The operative qualification in qualified immunity is whiteness. There is no other way to account for the difference in outcomes when America’s criminal justice system weighs the actions of people of color as opposed to those of white people. While the base of qualified immunity is a floor that allows for people acting in good faith to be allowed some degree of grace, its bumpy sub-flooring is constructed of a racist bias that sees people of color as less deserving of grace.

Systemic racism has rendered the American judicial system grotesquely out of balance. Laws have been interpreted to serve an oppressive segment of our society at the expense of the oppressed. This systemic racism must be dismantled brick by brick, and the brick to start with is qualified immunity.

Oscar H. Blayton is a former Marine Corps combat pilot and human rights activist who practices law in Virginia. His earlier commentaries may be found at https://oblayton1.medium.com/