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May 23, 2024 by Tom Roberts, Esq.

Time to remove the stain of qualified immunity

In 1871 Congress enacted the Ku Klux Klan Act of 1871 to provide protections against wrongs being perpetrated on citizens by state actors.  It imposed liability upon any person who, acting under color of state law, deprives another of a federal right, codified at 42 USC § 1983.  Congress did not provide exceptions for government officers who acted with purported good faith.  In 1882, the Supreme Court explained “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”


But all of that changed in 1967, when the U.S. Supreme Court decided to deprive Black Ministers of their vindication after they had dared to enter a “White Only” waiting room in a bus terminal in Jackson Mississippi – the court overstepped its constitutional authority and created its own legislation known as “qualified immunity.”

“We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under 1983. This holding does not, however, mean that the count based thereon should be dismissed.”  Pierson v Ray, 386 U.S. 547 (1967)

(In Pierson, the only threat came from a menacing crowd that objected to the ministers daring to enter segregated space!)

Read the best Judicial Opinion explaining “Qualified Immunity” and the reasons that it is time to remove this stain from our Nation’s history!

As U.S. District Judge Carlton W Reeves, (UVA Law School Graduate) in the Southern District of Mississippi wrote, in the case of Green v. Thomas,

“The Justices took a law meant to protect freed people exercising their federal rights in Southern states after the Civil War, then flipped its meaning. In creating qualified immunity, the high Court protected the Southern officials still violating those federal rights 100 years after the War ended. Southern trees bear strange fruit, indeed.

It is difficult to see qualified immunity’s creation as anything other than a backlash to the Civil Rights Movement. Yet even as America has incorporated the lessons of that Movement into its dominant narrative—that of American progress—the law has retained this vestige. Since the 1960s, in fact, the Supreme Court has continued to shape, enforce, and expand qualified immunity, making it almost impossible to overcome.”

Green v. Thomas, 2024 U.S. Dist. LEXIS 90805, *13-14 (May 20, 2024).

Strange Fruit
Song by Billie Holiday
Songwriters: Lewis Allen
Strange Fruit lyrics © Kobalt Music Publishing Ltd., Music Sales Corporation

Southern trees bear a strange fruit
Blood on the leaves and blood at the root
Black bodies swinging in the southern breeze
Strange fruit hanging from the poplar trees
Pastoral scene of the gallant South
The bulging eyes and the twisted mouth
Scent of magnolia, sweet and fresh
Then the sudden smell of burning flesh
Here is a fruit for the crows to pluck
For the rain to gather, for the wind to suck
For the sun to rot, for the tree to drop
Here is a strange and bitter crop

Thomas H Roberts & Associates, PC
105 S 1st Street
Richmond, VA 23219


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