Commentary: How an 1871 civil rights law morphed into a police protection act

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In 1871, six years after the end of the Civil War, the state of race relations was awful in the United States. Yes, the Union had defeated the Confederacy and forced the end of slavery. Yet in Northern as well as Southern states, official and unofficial racist policies were everywhere, and segregation in housing and schools was common across the nation.

Nevertheless, the viciousness of many in former Confederate states toward Blacks was so extreme that Congress responded to what was called this “reign of terror” by enacting what was known as both the Ku Klux Klan Act of 1871 and the Civil Rights Act of 1871. It held that anyone acting “under color of any law, statute, ordinance, regulation (or) custom” who deprived someone of their constitutional rights could be sued by their victims.

This is the law that is at the heart of the present debate over whether police officers have “qualified immunity” for their actions on the job. While present tensions over the continuing presence of systemic racism are high, America has obviously made progress since 1871. But during the 149 years since then, this law has been steadily weakened by unelected judges discovering nuances to its central finding that representatives of the state who deny others their constitutional rights can be held liable.

This is a perverse irony. A law meant to protect Blacks from capricious state action enacted during a nakedly racist era has now evolved through judicial interpretation into a law that makes capricious state action less likely to face sanction in a more enlightened era. A law that makes no mention of immunity is now somehow used as the basis for providing police immunity.

Judges initially began to reinterpret the law based on the idea that it was widely accepted in 1871 that police officers who acted in “good faith” in attempting to preserve public order should not be punished for their actions. This view was essentially codified into de facto law by a 1967 U.S. Supreme Court ruling protecting police officers in Jackson, Mississippi, from being sued for false arrest for their detention of (and dishonest claims about) Black and white clergy members peacefully protesting at a segregated bus terminal. Eight of nine justices supported the decision.

This protection for official misconduct was maximized in 1982 by another 8-1 ruling of the high court that dropped the “good faith” standard. It instead held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

This may sound reasonable. But liberal and conservative federal judges alike have found an astounding variety of “reasonable” police behavior that doesn’t violate “clearly established” constitutional rights.

Over the objection of Justice Clarence Thomas, the Supreme Court on June 15 refused to consider a case in which an officer unleashed his police dog to attack an unarmed Tennessee burglary suspect who had sat on the ground and surrendered.

This was unsurprising. A massive 2017 Reuters investigation found that even in the cellphone era — in which excessive police behavior has been caught on video thousands of times — federal judges were increasingly likely to rule against plaintiffs suing over police violence. Among the many examples it cited:

—An unarmed, mentally ill Oklahoma man with pneumonia behaving in a disorderly way at a hospital was stun-gunned twice, thrown to the floor and straddled by an officer in a way that prevented him from breathing, killing him.

—An unarmed Utah man suffered permanent traumatic brain damage after he was slammed to the ground by an officer who had pulled him over because he had a cracked windshield. The police cruiser’s dashcam showed the man had not been resisting arrest, as the officer claimed.

—An unarmed Texas bicyclist was killed when five officers 100 yards away from him mistook him for a criminal suspect and fired 17 shots at him.

—An unarmed, naked Alabama man behaving erratically was shot 19 times with stun guns and had his legs and arms shackled, then died of a heart attack after a 385-pound officer knelt on his upper back.

This list could go on and on. Yet only Thomas and fellow Justices Sonia Sotomayor, Ruth Bader Ginsburg and Neil Gorsuch have ever questioned how an 1871 civil rights law became a police protection act.

Like Thomas and Gorsuch, three other conservative justices — John Roberts, Brett Kavanaugh and Samuel Alito — brand themselves as “originalists” who say laws should be interpreted based on what they were intended to achieve. It’s beyond belief that they can think that the post-Civil War Congress wanted to protect law enforcement officers who kill or injure unarmed people for no good reason. The same goes for Elena Kagan and Stephen Breyer — the other justices who support “qualified immunity.”

I guess they can take comfort in the applause they’re getting from too many Americans who are still somehow in the “they had it coming” camp when reacting to videos showing victims of police violence.



Chris Reed is deputy editor of the editorial and opinion section for The San Diego Union-Tribune. Twitter: @chrisreed99. Email:


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