Published in 1838 by Charles Dickens, Oliver Twist features Mr. Bumble, who is told by a court that it is presumed that his wife acted under his direction. Bumble replies “if the law supposes that, the law is a ass, a idiot.” The phrase originated in a play in 1654 and has, thus, been around for well over 350 years, demonstrating the tenacity of wisdom cherished by the common folk.
Jurists and courts have far too often crafted or created legalisms to justify conclusions that otherwise are equally often not held by lay folk. In 1896, the Supreme Court formulated “separate but equal” (Plessy v. Ferguson) to rationalize the segregation of African Americans from other schoolchildren. The legalism, or precedent, upon which separate-but-equal was determined commenced in 1619, when African peoples were first kidnapped to the colonies as slave labor. Fifty-eight years after Plessy, in Brown v. Board of Education, the same institution declared the principle to be inherently false. Notwithstanding, opponents rushed to create “massive resistance” to the decision and its implications.
In 1961, a group of clergy, preparing for a Freedom Ride trip, stopped for lunch at a bus depot in Jackson, Mississippi, and were arrested by local police for breach of the peace, which makes a person guilty of a misdemeanor who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer. Members of the group sued the local judge under federal law, which ultimately reached SCOTUS in 1967 for a decision. The Court took the opportunity to include the actions of local law enforcement in its rejection of the plaintiff’s claim against the judge.
Pierson v. Ray (1967) justified a necessity for an immunity from civil (and criminal) lawsuits by crafting a rationale for protecting law enforcement officials from “frivolous lawsuits and financial liability” in cases in which they acted in good faith in unclear legal situations. Chief Justice Earl Warren wrote for the majority, arguing:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted [fined] in damages if he does.
Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.
The flaw in Warren’s logic is reliance upon “probable cause” in a situation fraught with personal judgment by the arresting officers. As the statute set forth the requirement of an offense of the peace in a public place “may be occasioned” along with “refusal to move on when ordered” demands an alarming quotient of judgment that could be abused.
The flaw in Warren’s logic is reliance upon “probable cause” in a situation fraught with personal judgment by the arresting officers. As the statute set forth the requirement of an offense of the peace in a public place “may be occasioned” along with “refusal to move on when ordered” demands an alarming quotient of judgment that could be abused. From 1967 to the present, the Pierson precedent of qualified immunity has been layered by subsequent jurisprudence and hardened into a legalism that might better be characterized as unqualified impunity for law enforcement officials.
Justice William O. Douglas dissented in Pierson, noting that the majority’s rule was far too absolute and inconsistent with common sense. He wrote:
The question presented is not of constitutional dimension; it is solely a question of statutory interpretation. . . . The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying “The King can do no wrong.”
The question presented is not of constitutional dimension; it is solely a question of statutory interpretation. . . . The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying “The King can do no wrong.”
As a matter of historical fact, massive resistance was massive mostly in the minds of its proponents. Over six decades of experience with Brown demonstrates that, for the most part, the common folk are more like Mr. Bumble than the pontificating jurist. However, vigilance is required to appreciate that the anal retentiveness of harmful and dangerous legalisms may persist. A number of the 200 federal judges appointed by P45 declined to affirm the holding in Brown as a core principle of American jurisprudence, thanks to coaching by the Federalist Society. Not massive, but resistance nonetheless.
Whether and when the law is a ass or a idiot remains to be concluded. Political pressure to reform police behavior has captured the national conscience. What is remarkable is that “separate but equal” and qualified immunity have affected the same racial group for many decades, if not centuries. Bumble, Dickens’ common man, rejected the officiously pronounced judicial wisdom of the court. The time has arrived to pierce the shield of police immunity for irresponsible and criminal behavior in the same way that “separate but equal” has yielded to common sense.
The present challenge simply demands that the law relinquish the view of “we v. them” in favor of understanding that “we are us.”
Not to be outdone by the proponents of massive resistance, those opposed to modifying qualified immunity or unqualified impunity parrot the threat that the absence of such protection will mean no one will become a law enforcement officer. That challenge was clearly disproved following the failure of massive resistance as neither students nor teachers refused to be together in classrooms. The present challenge simply demands that the law relinquish the view of “we v. them” in favor of understanding that “we are us.”
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