How Qualified Immunity Would Have Protected the Tulsa Mob
The doctrine that protects police today would also have protected the brutal rioters who destroyed the city's Black Wall Street in 1921.
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Photographer: Oklahoma Historical Society/Getty ImagesLast week, the U.S. Supreme Court declined to hear yet another case in which lower courts shielded law enforcement officials from paying damages for violating the rights of suspects — in this case, the shooting death of a Black man whose only offense was sleeping in his car.
The reason is qualified immunity, a doctrine that has been much in the news over the past year. I’ve long been an opponent of the judge-made doctrine, which protects government officials from most civil lawsuits for violating constitutional rights, unless the right in question is clearly established — meaning, as the Supreme Court explained in 2015, that “every reasonable official would have understood that what he is doing violates that right.” To take an example, should a prison guard brutalize an inmate, that’s a terrible thing, but qualified immunity means that the prisoner won’t get damages just because a reasonable guard would have understood that brutalization is wrong; a reasonable guard would have to know that the particular brutalization violated the inmate’s constitutional rights.